Westley and Kersey
[2019] FamCA 223
•12 April 2019
FAMILY COURT OF AUSTRALIA
| WESTLEY & KERSEY | [2019] FamCA 223 |
| FAMILY LAW – CHILDREN – Best interests of the child– Parental responsibility – Where the parenting matter was determined on an undefended basis – Where the father’s drug use is of concern – Where the father’s behaviour constituted family violence – Where the child does not want to spend time with the father – Where it is in the best interests of the child not to spend time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 69ZX(3) |
| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Horan & Beckett [2010] FamCAFC 200 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Millicott & Millicott [2017] FamCA 826 Tate & Tate [2000] FamCA 1040 |
| APPLICANT: | Mr Westley |
| RESPONDENT: | Ms Kersey |
| INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
| FILE NUMBER: | PAC | 5146 | of | 2016 |
| DATE DELIVERED: | 12 April 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 December 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | Mark Macdiarmid Family Law Specialist |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
Orders
That the mother have sole parental responsibility for the child X born … 2006.
That the child live with the mother.
That the child spend no time with the father.
That the mother shall be permitted to remove the child from the Commonwealth of Australia on any occasion she deems appropriate in the absence of consent of the father or otherwise.
Pursuant to section 11 of the Australian Passports Act 2005 the mother has liberty to apply to renew and to obtain an Australian passport for the child X born in 2006 in the absence of the consent of the father or otherwise, and insofar as it is necessary this order operates as an authority for her to do so.
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 Westley & Kersey 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: PAC5146/2016
| Mr Westley |
Applicant
And
| Ms Kersey |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for X who is 13 (“the child”). X is the only child of Mr Westley (“the father”) and Ms Kersey (“the mother”) who separated many years ago after a brief relationship.
The father has struggled with substance misuse throughout his adult life. He met the mother at an Alcoholics Anonymous meeting many years ago and she had by that time been abstinent from alcohol misuse for many years. The parties commenced a relationship quickly and the child was conceived. The mother contends that from the time she was pregnant the father has presented and behaved in a manner clearly consistent with substance misuse.
The parties separated a few months before the child was born. The mother facilitated some contact between the father and child for some years, but has always held concerns about his behaviour and capacity as a parent related to his substance misuse.
Ever since the father initiated proceedings in November 2016 seeking to share parental responsibility for the child with the mother and spend defined time with the child, the mother has taken the position that the father continues to pose some risk to the child so long as he is misusing substances. Initially it was her proposal that so long as the father complied with orders with respect to monitoring his drug use and completed a program designed to promote abstinence that the child could spend time with him. However, since the father has not complied with those orders, the mother has changed her position. She now seeks orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father, and that she also be permitted to have a passport issued for the child and travel internationally with her without his consent.
The Independent Children’s Lawyer (“ICL”) supports the orders sought by the mother.
The day before the final hearing, the father electronically filed an “Amended Application for Final Orders” which although not in the prescribed form set out the orders that he now seeks. In this document, the father also changed his position. The final hearing was conducted on the basis that he seek orders set out in this document, in particular that he spend time with the child on a weekend day for seven hours which for 12 months would take place supervised at a contact centre. Thereafter it is his proposal that the child spend this period of time on an unsupervised basis.
The ambit of the dispute was thus significantly reduced at the final hearing. The parties agreed that it was in the child’s best interests to live with the mother and that pending further order the mother have sole parental responsibility for her. A final order concerning the child’s residence was made on that date in accordance with this position.
The questions requiring determination are whether the parents should share parental responsibility for the child and whether it is in child’s best interests to spend any time with the father.
The father’s non-compliance- an “undefended hearing”
On 20 September 2018 at a compliance check it was apparent that the father had failed to file any material in compliance with the trial directions made on 18 July 2018. The father also did not attend this court event so it was unclear whether he was still participating in the proceedings. Directions made on that day included that the father be informed that if he fails to file his trial material and attend on the adjourned date, the proceedings would likely be listed for an undefended final hearing.
At a court event before me on the 25 October 2018, the father still had not complied with the trial directions to file the evidence upon which he relies. He did however indicate that he wished to cross-examine the mother and may seek to rely on an affidavit that may be filed in the future. I informed the father that if he prepared an affidavit setting out all matters relevant to the orders that he seeks and provided reasons for not filing it in accordance with the trial directions and serve it upon the mother, he could seek leave to rely on that affidavit at trial. I ordered all parties to file a Case Outline, and the father to file a Minute of Order setting out the orders he was seeking. The proceedings were fixed for final hearing on 14 December 2018.
On 11 December 2018, the father filed a Case Outline in which he identified that he would seek to rely on an affidavit of himself that was yet to be filed. On 13 December 2018 a document was electronically filed as an “Amended Application for Final Orders” which although not in the prescribed form set out the orders sought by the father
On the 14 December 2018, the father sought to vacate the trial date so that he could seek legal advice about the proposal that the proceedings be determined on an undefended basis. This application arose by necessity in circumstances where the father sought to rely upon an affidavit that had not been filed. The mother’s solicitor opposed this application on the grounds that the father was the applicant in the proceedings but had not complied with trial directions whereas the mother was ready to proceed. The ICL also opposed the application to vacate the final hearing date.
The father then sought to rely on his unfiled affidavit. He attributed his non-compliance with the trial directions to his mental health conditions (bipolar disorder and clinical depression) and due to his legal aid funding being withdrawn. In his affidavit tendered for the purposes of the application, the father deposed to attempting to appeal the decision to withdraw his legal aid funding twice unsuccessfully and he claimed he had not received notification that the appeals were unsuccessful until after the trial documents were due to be filed.
The father deposes that he was informed by the Legal Aid Commission on 15 June 2018 that his legal aid funding would be terminated by 22 July 2018 and that the outcome of his second appeal was to be given on 24 August 2018. Given that the parties’ trial affidavits were due to be filed by the 17 September 2018, the father had almost two months to prepare the affidavit himself. He also had a further opportunity after 25 October 2018 to prepare his affidavit and provide it to the mother in order to afford her procedural fairness. The father did not take advantage of this further opportunity and instead at the final hearing sought to rely on an unfiled affidavit which the mother had not seen.
In circumstances where the mother was ready to proceed to final hearing and the father, who had initiated the proceedings, was not ready to proceed and had not complied with directions, I refused the application to vacate the hearing date. Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[1], and to the principles for the conduct of child-related proceedings[2], in my view it was in the best interests of the child for the proceedings to be finalised and dealt with on an undefended basis on the date on which it had been fixed for final hearing.
[1] [2014] FamCAFC 14
[2] Set out in s 69ZN of the Family Law Act 1975 (Cth).
I also determined that the father could not rely on his unfiled affidavit especially as it had not been served on the mother who was otherwise ready to proceed.
I then considered whether the father could participate in the proceedings by being permitted to cross-examine the mother. The mother’s solicitor drew my attention to the Full Court decision Tate & Tate[3] in which it was held that in determining whether it is procedurally fair to allow a party to cross-examine in light of the matter being considered undefended, it is also relevant to consider whether this would cause injustice the other party who had complied. The mother did not however identify any injustice that may flow to her in these circumstances. Further as I had previously set aside a day for the hearing on the basis that the father did wish to cross-examine the mother, I did permit this to occur. As it then happened the father only put one question to the mother by way of cross-examination, which did not appear to have any relevance to the matters under consideration. The father then had no further questions to put to the mother.
[3] [2000] FamCA 1040
Background
The father who is 51 and the mother who is 44 commenced their relationship in 2005 and separated on a final basis in 2007. The child who was born in 2006 and less than two years old at the time of separation has lived at all times with the mother.
The parties met at an Alcoholics Anonymous meeting in 2005. The mother had been attending these meetings for around nine years at that stage and had been abstinent from alcohol throughout that time. The father confided in the mother at the time that he attended these meetings because of his previous drug use.
The parties commenced their relationship not too long after their first meeting. Within a year the father had moved in with the mother at her rented accommodation and the mother was pregnant.
The mother noticed that the father’s presentation and behaviour started to change when she was first pregnant with their child in mid-2005. He became excessively tired during the day, began to lose weight rapidly and occasionally his speech would become slurred.
The mother also started to suspect that the father was using illicit drugs based on her observations that parties’ household possessions and money put aside for the payment of bills went unaccountably missing and as the father had no money to contribute to the household expenses despite earning $700 a week. A letter written by the father in July 2005 to a drug rehabilitation unit seeking readmission (produced on subpoena and tendered in the proceedings) is consistent with the mother’s suspicion.
The mother asked the father to leave on a number of occasions during the latter part of her pregnancy which he refused to do.
The child was born in 2006.
The mother returned to work after taking five months maternity leave following the birth of the child in order to meet the living expenses of herself and the child as the father was still not making any financial contributions.
The father’s behaviour and presentation following the birth of the child appeared to the mother consistent with the ongoing illicit drug use. When she confronted him about this issue an argument ensued in which the father admitted to using heroin and “ice” (methamphetamine).
In about mid-2006, the father attended a four week drug and alcohol rehabilitation program. Following his release from rehabilitation, he immediately resumed his drug use. Around this time also the mother became aware that he had contracted Hepatitis C some years before through drug misuse by coming across a medical letter to this effect in their home.
In around August 2007 the mother made the decision to end the relationship based on the father’s failure to remedy his drug misuse and the distress she had experienced at becoming aware of his diagnosis of Hepatitis C which he had not disclosed and which had exposed both she and their child to significant risk. The child was almost 18 months old when the parties separated.
After separation
The mother understands from conversations she had with members of the father’s family that the father lost contact with his family after the parties separated. For a period of time after separation he stayed in various half way houses for men with drug and alcohol problems.
Following separation the parties did maintain some contact with one another and the mother facilitated some supervised visits between the child and father. She was always present during these visits as she did not feel comfortable leaving the child with the father while he was drug affected.
The father at times made threats that he would take the child from the mother if she did not give him money. He attended at her workplace and home from time to time and harassed her with telephone calls and texts requesting money. The mother often provided the father with the money as requested in a hope that he would leave her and the child alone.
In June 2008, the father was admitted into a hospital rehabilitation unit where he stayed for 13 days to address his substance dependence. During that admission the mother reported to a nurse that he was spending time with the child. The nurse as a mandatory reporter made a risk of harm report to the Department of Family and Community Services.
In February 2009, the father was again admitted into the hospital drug and alcohol unit for detoxification. At the time he admitted to daily heroin use and to taking 15 to 20 Valium tablets every other day in documents associated with that admission. The father discharged himself from the unit against medical advice.
At around this time the father disclosed to the mother his concerns that a drug dealer to whom he owed money may seek to obtain the money from her. Subsequently a number of people attended at the mother’s home asking for money owed by the father.
In April 2010, the father was admitted to hospital for treatment of an accidental paracetamol overdose in which he took 30 tablets in a 12 hour period.
Sometime in 2010, the mother was in the company of the father on an occasion where it became apparent that he was in possession of a stolen a wallet. Two men approached them demanding that the father return the wallet and threatening to call the police.
In mid-2010 the mother made a decision to cut off all contact with the father. The mother asked the father to stop coming around to her house and he ignored this request and continued to come to her home. In June 2010, she reported her fears to police arising from the father’s drug use and her belief about his likely reaction to her cutting off contact with him. The police applied for an Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother due to their concern for her welfare. In September 2010, a final ADVO was made with the standard orders that the father must not assault, molest, harass, threaten, intimidate, stalk or otherwise interfere with her and additional orders that he be restrained from residing at the mother’s home and from approaching the mother, her home or workplace within 12 hours of consuming alcohol or illicit drugs. The father was present in court when the order was made.
Subsequently, the mother stopped spending any time with the father due to her concerns about his behaviour and the risks he posed to the child arising from his ongoing drug use except for one occasion in 2014 or 2015 when she drove the father to hospital for Hepatitis C treatment at his request.
The father continued to harass the mother for money, threaten to take the child from her and behave in an aggressive manner following the final ADVO being made. The mother became aware that the daughter was becoming alert to the father’s strange behaviour and unstable moods. In August 2016, she made a decision to relocate with the child who was then aged 10 and to cease all contact with the father.
The mother continued to receive harassing texts from the father until she changed her phone number in late August 2016.
After the mother relocated, police records produced on subpoena provide details of an incident where the father approached a friend of the mother demanding that she inform him where the mother was living. This prompted the mother to make enquiries about seeking another ADVO for her protection, but it is recorded that a police officer advised her against doing this as it may have resulted in the father locating her.
The father filed commenced these proceedings seeking to spend time with the child in November 2016.
As the mother could not initially be located, a location order was made to enable the applicant father to serve the mother with the application.
By March 2017 the mother had been located and had filed a Response.
Child Inclusive Conference
The mother, father and child attended on a family consultant for a Child Inclusive Conference in July 2017.
The mother had expressed fear of coming into contact with the father on the day of the interview, and accordingly a safety plan was put in place. The family consultant escorted the father to the exit at the conclusion of his interview at 10:30am. When the child’s interview finished at around 12 noon, the mother was concerned that the father would be outside waiting for her. The family consultant accompanied the mother out to the front steps of the court building and observed the father sitting on a wall near the court. Upon noticing the family consultant, the father quickly got up and quickly walked away.
The mother disclosed at the Child Inclusive Conference that over 20 years ago she was alcohol dependent but had been sober since that time. The father confirmed this was the case, and said he had no concern that the mother posed any risk to the child or about her day-to-day care of the child.
At the Child Inclusive Conference, the mother discussed the father’s history of drug use. The father confirmed that he previously had a dependency on heroin and ‘ice’ and that he last used heroin in 2012/2013. He said that his last use of an illicit substance was cannabis in 2015/2016. The father denied he had ever used ice in the presence of the child or that she had seen him drug affected.
The father confirmed that he had a criminal history including convictions for possession of illicit substances, driving offences and theft.
At the time of the interview, the child was 11 years old. The child denied that the mother had influenced her to view the father in a negative light. She said that she did not want to spend time with the father and that “I was always quite scared of him.” She told the family consultant that the father “sometimes acted strange” when he came to see her and that his visits had been “really stressful for me.” When asked how she would feel about supervised visits at a Contact Centre, the child said she would be “very upset” if the judge ordered this and that if the father pressed to spend time with her that she would “probably hate him. Or be upset.” She added “why he can’t just let us be.”
The family consultant recommended that the child not spend unsupervised or supervised time with the father in the interim in light of the child’s disinclination to do so. The family consultant felt that there was little point in the child re-establishing a relationship with the father until he has demonstrated that he has been drug free for at least two years.
In August 2017 the proceedings were transferred from the Federal Circuit Court to this court. The father’s drug use was identified as the most significant issue in the proceedings and it was noted that the father had been requested to undertake urinalysis to monitor his drug use.
At a court event on 11 December 2017 two potential expert witnesses with particular expertise in relation to substance misuse were identified. At the same court event I also noted that the father had not been fully compliant with urinalysis requests to date as the tests undertaken did not indicate that chain of custody procedures in relation to the samples had been followed. The potential for hair testing was raised but the father said that he could not afford this. The mother put it to the court that she was prepared to pay for the hair testing to enable that it occur and may seek to recover such costs at a future date. It was ordered accordingly that the mother pay the father’s hair drug testing and the results be made available before the appointment of one of the contemplated experts.
Results of a hair drug test from a sample collected from the father on the 3 January 2018 indicate a positive result for Methamphetamine and THC Metabolite [cannabis].
At a court event before a Registrar on 15 June 2018, the Registrar noted that the hair drug testing reported two illicit substances and the ICL raised the issue of further testing before the preparation of an expert report. It was also noted that the father’s legal aid grant had been withdrawn, and that in these circumstances the parties may have difficulty funding the expert report.
On the 18 July 2018 orders were made for the ICL to direct the father to make an appointment to attend another hair drug test and trial directions were made.
Although the ICL sent a request to the father by email for a further hair drug test which was followed up by a further email the father did not comply with the directions in accordance with the orders and no explanation for this non-compliance has been given.
The parties could not afford to fund an expert report to assist in determination of the parenting dispute and the hearing proceeded without such a report.
The Law & Discussion
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.
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.
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).
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.
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)
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.
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
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6].
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
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”.
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).
This consideration has not been interpreted as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents. The objects of Part VII of the Act as noted are also to ensure 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 interest of the child.
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.
The child has not seen her father in over two and a half years and currently has no relationship with him. The orders proposed by the mother and supported by the Independent Children’s Lawyer that the child spend no time with the father would see that this continue.
In submissions, the father contended that the child previously had a close relationship with him and that she should have the benefit of that relationship regardless of “personal grievances” between he and the mother. There is also no evidence about the nature of the child’s relationship with the father in the past and the father’s limited and supervised time is not in my view likely to have established a foundation for such a relationship. There is no evidence to suggest that the father’s relationship with the child has been damaged due to “personal grievances” between the parties or that the mother’s conduct has caused the father to be personally aggrieved which has impacted on his relationship with the child. The father appears to lack insight into the impact of his conduct towards the mother, lack of responsibility towards the child and failure to address his own shortcomings as reasons for the breakdown in his relationship with the child.
Given the child’s disinclination to spend time with the father, the family consultant opined that there was little point in the child re-establishing a relationship with him until he had demonstrated that he had been drug free for at least two years.
The hair testing conducted in accordance with a court order during these proceedings indicates the father’s ongoing drug use as at January 2018. From his failure to comply with further testing in mid-2018, it may be inferred that his drug use is currently ongoing.
The order sought by the mother and ICL that the child spend no time with the father is the most extreme order that can be made by the court, and will deny the child the opportunity to have a relationship with her father. However the father’s failure to address the most significant issue of risk associated with his ongoing relationship with the child leads to an inference that there is no positive benefit to the child in having a relationship with him while he is still engaged in illicit drug use.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The mother’s primary submission is that the father poses an unacceptable risk of harm to the child arising from the likelihood that the child may be neglected in his care or be exposed to his harmful behaviour including family violence due to his ongoing drug abuse.
Despite steps taken by the father in an effort to cease drug use from at least 2005 it may be inferred that he continues to use illicit drugs up until the present.
Although there is no expert evidence concerning the potential harms to children occasioned by a parent’s drug use, section 69ZX(3) of Act permits a court to adopt findings made in other court proceedings. In parenting proceedings before me in 2017 reported as Millicott & Millicott[7], one of the significant issues in relation to the best interests of a child related to the risk associated with parental drug use. In those proceedings, I accepted the following opinion of a family consultant as to that matter which I adopt in these proceedings:
Children who live in households where a parent uses drugs, including methamphetamine, are more likely to be abused or neglected than other children. These children often do not have access to basic necessities such as food, water or shelter. Their supervisory and medical needs are also often neglected... Users of methamphetamine also often poor judgment, [sic] confusion, irritability, paranoia and increased violence which can pose an unacceptable risk to children, particularly when they are of a young age.[8]
[7] [2017] FamCA 826.
[8]Millicott & Millicott [2017] FamCA 826 at [179].
In Horan & Beckett[9], the Full Court, in dismissing an appeal, discussed evidence relied upon by a trial judge regarding the relationship between drug use and parental capacity:
There is substantial research in regard to the negative consequences to the children of substance abusing parents. Such children often experience distortion and secrecy, as well as social isolation. They are more vulnerable to accidents and injuries and to exposure to traumatic events including violence. They generally have more health problems and poorer developmental outcomes.[10]
[9] [2010] FamCAFC 200.
[10]Horan & Beckett [2010] FamCAFC 200.
These opinions are relevant to the circumstances in the parenting dispute under consideration. On the basis of this evidence I find that the father poses a risk of harm arising from the likelihood that he will neglect the child, exercise poor judgment, exhibit irritability and behave aggressively for so long as he continues to misuse substances, particularly methamphetamine.
In circumstances where the father seeks an order that the child will spend unsupervised time with him after 12 months of supervised visits, the potential for the child to be harmed on this basis is a real concern in these proceedings.
The need to protect the child from psychological harm from being exposed to family violence is also a live issue in this matter. I am satisfied that the father has engaged in stalking the mother over a lengthy period of time and attach weight to the fact that she required an ADVO, felt it necessary to relocate and for her whereabouts to remain undisclosed in order to protect herself from the father. The father’s proposal would require the parties to come into contact with one another and communicate regularly in relation to changeovers and in the exercise of shared parental responsibility. There is in my view a real risk that if orders were made as sought by the father it would be more likely than not that he would perpetuate family violence of this type against the mother to which the child may be exposed.
In relation to the interplay between the two primary considerations, I do not make a positive finding that the child would never receive a benefit from having a relationship with the father. However, a meaningful relationship could only be achieved once the father has addressed the principal risk factor associated with his care, being his drug abuse. At present the risks that the child may be exposed to neglect or family violence outweigh the benefit of the child having a relationship with the father.
Additional considerations: s 60CC(3)
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
The child is now 13 and has not seen her father since the age of ten. She is aware of her father’s drug abuse and has experienced his behaviour when drug affected which she described as “scary”. She has expressed the view that she does not wish to see or spend time with him. When she was asked whether she would be willing to spend time with the father if there was proof that he had stopped using drugs, the child responded that she still would not want to do so as she “still think[s] of him as how he was.”
The child presented the family consultant as having met all the milestones for her age and stage of development. The child appeared to understand all of the questions put to her and the implications of her responses.
Having regard to her age, her level of understanding and the unambiguous nature of her statements I attach significant weight to her views.
Nature of the child’s relationship with each parent and other significant persons
At the Child Inclusive Conference, the child spoke positively of her mother and indicated that she meets her practical and emotional needs.
The mother has had sole of care of the child her entire life and can be assumed to be the child’s principal attachment figure. It can also be assumed that the father had a limited relationship with the child for many years, spending time with her only under the supervision of the mother. The child has had no relationship with the father for over two and a half years and said at the Child Inclusive Conference that she rarely thinks about him.
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
From the time of separation until the mother relocated in 2016, the father was only spending time with the child supervised by the mother for short periods of time. The father played no other role in the child’s life.
The father made no effort to participate in long-term decision making regarding the child until applying to this court for an order for equal shared parental responsibility at which time she was already ten years old.
The mother has assumed all responsibility for the child throughout her life.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is no evidence to suggest that the father has ever fulfilled any obligation in a meaningful way to maintain the child. The mother returned to work when the child was a few months old to support the family financially and she alone has borne the sole burden of raising her throughout her life.
As a result of a claim submitted to the Child Support Agency, the mother has received a total of $34.00 over the last six months by way of child support. The mother is entitled to $12.00 a week from the father however due to debts owing by him, she only receives a few dollars per week. This paltry sum in no way amounts to any meaningful discharge of the father’s obligation to maintain the child.
Likely effect of change in the child’s circumstances
Capacity of each parent to provide for the child’s needs
The mother’s proposal would result in no change in the child’s current circumstances. Her initial position that the child spend time with the father “as agreed between the parties” was contingent on the father demonstrating that he had overcome the risks he posed to the child associated with his drug use. The father failed to prove to the mother that he has addressed his drug misuse.
The mother’s capacity to provide for the child’s needs has historically been impacted by the father’s involvement in her life. His drug addiction and ensuing harassment resulted in the mother reducing her workload and hours of employment as she was unable to function at the same level due to the high level of stress. It was only when the mother relocated that she was able to resume full time work and utilise her qualifications.
The mother has a proven capacity to meet all of the child’s needs, which she has ably done throughout the child’s life. The father has no proven capacity to meet the child’s needs and as previously discussed there are real risks associated with his lifestyle which is characterised by illicit drug use.
The father’s final proposal is for the child to spend supervised time at a contact centre with him each alternate weekend day from 9.00am to 4.00pm and that after 12 months this time is to be unsupervised. In proposing supervised time, the father must be taken to accept that he poses a risk to the child. He must also suggest that supervision is the appropriate manner in which the risks associated with his care may be mitigated. However, not all risks can be appropriately mitigated by supervision.
In this case I am of the view that supervision is an inappropriate means by which to mitigate the risks associated with the father’s likely shortcomings in the care of the child arising from his drug use. Further, a proposal that an adolescent spend a block period of seven hours at a contact centre (even if such facilities were available) appears to be entirely inappropriate and not child focussed given her age.
Another difficulty with the father’s proposal arises if he has not addressed his drug use after 12 months. The risks associated with his care of the child will remain. The father adduces no evidence of his current circumstances and his capacity to care for the child. Even on the limited basis he proposes the father is entirely untested. The father demonstrates no insight into the needs of the child arising from his lack of experience with her, the nature of his lifestyle and her memories of a previous relationship with him.
The late filing of the father’s amended application and inconsistencies within the orders sought suggest that this proposal was not well considered. It is likely in my view that if the child were to spend time with him as he proposes it would have a significantly detrimental impact upon her.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The father’s lifestyle has been characterised by ongoing and regular drug use which has resulted in significant physical and mental health issues, brushes with the law, breakdown in relationships with important family members and the loss of his relationship with the mother and his child. He has failed to take any responsibility for the child including through the provision of sufficient financial support. The breakdown in his relationship with the child is due entirely to his failure to address his drug abuse.
The mother has at all times demonstrated that she is a responsible and protective parent. The mother has overcome substance misuse and has been sober for over 20 years. She has been the only parent financially responsible for the child and the sole parent who has supported and nurtured the child physically and emotionally.
The mother has demonstrated a conscientious and proactive attitude to the responsibilities of parenthood by relocating and ceasing the child’s time with the father to protect her from exposure to that which could cause her physical or psychological harm.
Family violence relating to the child or a member of the child’s family
Family violence is broadly defined. The father’s harassing behaviour following separation has caused the mother to be fearful of him to the extent she felt it necessary to relocate with the child and seek an ADVO for her protection. Evidence of the father stalking the mother is well documented within the police records and reinforced by his conduct on the day the parties met with the family consultant when he was found lurking outside the court.
I am satisfied that the father’s behaviour in the past constitutes family violence. Given his ongoing drug use, I am of the view that there is an unacceptable risk that the father will engage in behaviour that constitutes family violence if orders were to be made that required the parties to come into contact with one another.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
The father provides no evidence as to the expense that would come with his proposal to spend seven hours per fortnight at a supervised contact centre for a 12 month period. I anticipate that were a contact centre able to provide such a service (and there is no evidence that this is available) the costs would be substantial. The father adduces no evidence that he has a capacity to fund this arrangement, and his lack of financial support for the child and ongoing drug abuse would indicate the contrary.
Conclusion
Parental responsibility
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.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[11] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[11] (2006) FLC 93-286
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 her (subsection 61DA(4)).
The mother seeks sole parental responsibility and the father seeks equal shared parental responsibility.
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 child.
For the reasons previously given I am satisfied that the father has perpetrated family violence against the mother and accordingly the presumption of equal shared parental responsibility does not apply.
There has never been a co-parenting relationship between the parties. The father currently and historically has had no involvement in decision making in relation to the child and the mother has effectively held sole parental responsibility for all of the child’s life. There is currently no communication between the parents and the mother holds legitimate fears about the father and wishes to have nothing to do with him. There is no evidence before me that supports the parents having any capacity for joint decision making. I am easily satisfied that it is in the child’s best interests for her mother to have sole parental responsibility for her.
The father’s time
While it may have been appropriate to make orders that provide for the child to spend some time with the father in other circumstances, his lack of insight into the connection between his drug use and shortcomings in his capacity as a parent means that such orders are not in the child’s best interests.
For the father, there has always been a very clear pathway for him to re-establish his relationship with the child and for the child to receive a benefit from this relationship. In order for this to occur, the father must address the concerns held by the mother and this court about his parenting capacity and the risks associated with his behaviour which are entirely associated with his illicit drug use. The father has failed to accept responsibility for this matter and take the necessary steps to address his substance misuse. In these circumstances, and having regard to the foregoing matters, I am of the view that the risks associated with the child spending time with the father outweigh any benefit she may receive from re-establishing a relationship with him. For these reasons I make the orders as sought by the mother as I consider them to be proper having regard to the best interests of the child.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 April 2019.
Legal Associate:
Date: 12 April 2019
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