ZOTZ & ZOTZ

[2018] FamCA 293

FAMILY COURT OF AUSTRALIA

ZOTZ & ZOTZ [2018] FamCA 293

FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from the proceedings – Where there are allegations of family violence – Where there are allegations the father sexually and physically abused the mother’s older child – Where there are concerns as to the father’s drug use and criminal history – Where the father poses an unacceptable risk of harm to the children on the basis of family violence – Orders made for the children to live with the mother and spend no time with the father – Where the mother seeks that she be allowed to change “the children’s surname” – Where no evidence adduced to support an order for change of the children’s surname – Where no order made as to change.    

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the father has filed a Notice of Discontinuance and disengaged from the proceedings – Where it is appropriate for the matter to proceed on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Zotz

RESPONDENT: Ms Zotz

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Penrith

FILE NUMBER: PAC 4309 of 2015

DATE DELIVERED: 4 May 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance, AJ & Associates Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bernie

SOLICITOR FOR THE RESPONDENT: Shelly Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Brien

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

Orders

1. The mother, Ms Zotz, have sole parental responsibility for the children, B  born … 2011 and C born … 2012.

2. The said children live with the mother.

3. The father not spend any time with or communicate with the children.

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 Zotz & Zotz 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 4309 of 2015

Mr Zotz

Applicant

And

Ms Zotz

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are final parenting proceedings commenced by the applicant father by Initiating Application filed 2 September 2015 in the Federal Circuit Court of Australia.

2. The application concerns six year old B and five year old C (“the children”) who are the children of Ms Zotz, the mother, and Mr Zotz, the father.

Context

1. The parties commenced a relationship in 2008, married in 2011 and separated sometime in 2012.  

2. The children have lived with their mother, and her 11 year old daughter from a previous relationship, C, and spent no time with their father since the parents’ separation. 

3. The father has a child from a previous relationship, J, who is 12. He also has a child, E who is three, from his relationship with his current partner. The father’s current partner also has one child from a previous relationship, Savannah who is seven.  

4. The father initiated these proceedings on 2 September 2015 in the Federal Circuit Court of Australia. The proceedings were subsequently transferred to this Court on 24 February 2016.

5. On 31 May 2016 the parties were ordered to attend on a Family Consultant for the purposes of participating in the Child Responsive Program.

6. The mother and the children attended on a Family Consultant for interview on 6 September 2016. The father did not attend on this date and was interviewed by telephone. The subsequently produced Children and Parents Issues Assessment, dated 30 September 2016, recommended that due to the serious allegations made against the father the children spend no time with him in the interim even at a contact centre.

7. On 3 February 2017 orders were made for the production of a Family Report and for both parents to submit to random urinalysis testing at the request of the ICL. That Report dated 17 May 2017 was released to the parties on 30 May 2017.

8. Trial directions were made on 25 July 2017 as were orders for the parties to submit to hair follicle testing.

9. By 21 September 2017 the parties had filed affidavits and complied with trial directions. Proceedings were listed for trial for four days commencing 26 March 2018.

10. The parties were before the Registrar on 29 November 2017 and it was noted that the father had recently been charged by police with the details to be provided by the father’s solicitor within seven days.

11. On 12 March 2018 the father filed a Notice of Discontinuance and on 26 March 2018, when the matter was next before the Court for trial, there was no appearance by or on behalf of the father. The matter proceeded to undefended hearing as the father had disengaged from the proceedings.

12. Accordingly, orders were made on that date for the mother to have sole parental responsibility for the children and for the children to live with her and spend no time with the father.   

13. Reasons for those orders were reserved to a date to be advised. These are those Reasons.      

The mother’s documents

1. The mother relied upon the following documents:

   a)her Response to the father’s Initiating Application filed 1 December 2016;

   b)her affidavit filed 21 September 2017;

   c)the affidavit of Ms F, a friend of the mother, filed 28 September 2017;

   d)the affidavit of Ms G, C’s counsellor, filed 4 October 2017; and

   e)the affidavit of Mr H, annexing the mother’s drug test reports, filed 29 September 2017.   

2. The mother seeks orders, in summary, as follows:

   a)that she have sole parental responsibility for the children;

   b)that the children live with her;

   c)that the children spend no time or communicate with the father;

   d)that the mother be at liberty to change the children’s names.

The evidence

1. The mother, who is aged 34, and the father, who is aged 33, commenced a relationship in 2008.

2. The mother has one child from a previous relationship, D, who was born in 2007 and identifies as Aboriginal. D does not spend time with her father. The father also has a child from a previous relationship, J, at that time aged 12.  

3. At the start of the parents’ relationship they spent time at the paternal grandparents’ home, where the mother and D slept in the father’s room, or at the maternal grandmother’s home.

4. The father subsequently moved in with the mother and D at the maternal grandmother’s home.

5. The mother claims either she or the paternal grandmother would care for J on the weekends she was to be in the father’s care and that the child was usually physically and emotionally distressed at having to spend time with the father.

6. Allegations were made when J was approximately three years of age that the father had sexually abused the child. Those allegations were not substantiated and minimal evidence was produced in these proceedings as to this allegation.  

7. The mother claims the parties’ relationship was characterised by the father being aggressive and violent towards her and the children.

8. The mother’s characterisation of the relationship is supported by Ms F, a friend of the mother, in her affidavit filed on 28 September 2017.  Ms F deposes to witnessing the father being sexually suggestive, aggressive and derogatory towards the mother on a number of occasions over the course of the relationship. She also deposes, as does the mother, to an incident in 2009 in which Ms F’s daughter in play bit D and the father then picked up Ms F’s daughter and bit her on the arm to “teach her not to bite”.

The child B

1. The parties’ first child, B, was born in 2011.

2. In May 2011 the father became aggravated by B’s crying while he was watching television at the parties’ home and punched the wall near the mother’s head in anger. The father subsequently apologised to the mother saying that he needed her “to keep [the children] quiet.”

3. The father became increasingly verbally abusive towards the mother, D and B throughout 2011. The mother deposes to the father often swearing at D or waking her up after she had gone to sleep for the night to clean up her room.

4. When the mother attempted to leave the relationship in September 2011 the father took B from her and refused to return the child to the mother. The mother deposes to the father attempting to force feed the child cordial when she became hungry despite the child still being breastfed at this time. The mother called the police but they did not attend the home. She then called the maternal grandmother to whom the father handed the child after some discussion.

5. Shortly thereafter the mother discovered she was pregnant with the parties’ second child.

6. Following a physical assault of the mother in August 2011 the father presented the mother with a diamond ring and apologised for his behaviour.

7. Around this time D began to exhibit anxious behaviours such as sucking her arms to leave bruises and pulling out her hair.

8. In March 2012 there was an incident in which D was refusing to eat dinner and the father covered her mouth and nose in an attempt to force her to swallow her food.

9. In early 2012 the father commenced associating with K Club, with which members of his family were affiliated. The mother deposes to the father spending limited time with her and the children thereafter.

The child C

1. The parties’ second child, C, was born in 2012. The child was born prematurely and was in hospital for a number of weeks. During this time the father provided little assistance to the mother in caring for the other children as he was spending increasing amounts of time with K Club.

2. Following the return of the mother and the child from the hospital there were two further incidents in which the father punched the wall in anger, on one of those occasions in front of the children. The father continued to be aggressive and verbally abusive and would destroy items of furniture or kick the family dog in anger.

3. In September 2012 the parents attended on a medical centre with the children as the child C was sick. The father became frustrated by the extended waiting time and began yelling at the mother before leaving to go home. When the mother returned home from the medical centre the father was verbally abusive towards her. She attempted to leave and the father placed his hands around her neck and choked her until neighbours intervened. The entire incident occurred in the presence of the children. Regrettably, the police were not called.  

4. In October 2012 the father raped the mother in the presence of both B and C. The mother deposes to this being the first time the father had raped her but not the first time he had been forceful with her about sex.       

Separation

1. The parents separated in November 2012 when the father moved out of the family home and in with another woman.

2. Following separation the father spent time with the children at the family home on a limited and itinerant basis. During these times the mother deposes to the father appearing to be under the influence of drugs or watching pornographic content in the presence of the children. The father regularly watched pornographic content involving young women during the relationship, sometimes in the presence of the children.    

3. The father informed the mother post separation that he had people watching her and on one particular occasion during a telephone conversation he could describe exactly what she was wearing despite not being with the mother at the time. The father also threatened her life on a number of occasions.

4. On 17 May 2013 the father attended on the mother’s house and demanded to see the children. He was acting irrationally and woke the child B, who had been sleeping. The mother was breastfeeding the child C and the father lunged at and pushed the mother while attempting to reach into her back pocket to extract her phone. The father took the mother’s phone and left the house.

5. Both children were in some distress and the mother called the police. The mother made a statement to police and an interim Apprehended Violence Order (“AVO”) was taken out against the father for the protection of the mother and children (Exhibit “E”).

6. The father made a number of threatening phone calls to the mother over the next few weeks and the mother, and/or the mother’s neighbours, saw the father’s car outside the mother’s house and D’s school.    

7. A Final AVO was made for six months for the protection of the mother against the father on 7 August 2013 which restrained the father from approaching or contacting the mother or going within 100 meters of the mother’s place of residence or work (Exhibit “F”).

8. Following some involvement with a domestic violence service the mother and children moved to a shelter in late 2013. Around this time D commenced counselling with Ms G through Victims Services.

9. The father has not spent time with the children since September 2013.

10. In January 2014 the child D disclosed to Ms G that she had been sexually abused by the father. In her affidavit filed 4 October 2017 Ms G deposes to the following:

    [D] has been explicit and consistent in her disclosures about childhood sexual abuse. On a number of occasions, including on or around 16 January 2014. [D] said words to the effect of: 

    D: “[Mr Zotz] did quiet smacking.” “He did it when mum was outside hanging the washing or looking after the babies”.

    [D] then demonstrated cupping her hands over her vagina and bottom area. When [D] used the term “quiet smacking”, it refers to the touching of the genitals rather than an actual physical smacking. 

11. Ms G subsequently made a report to the Department of Family and Community Services (“DFACS”) in her role as a mandatory reporter. The child subsequently made further disclosures of physical and sexual abuse in her counselling sessions.

12. Ms G opines that D “presents as a highly traumatised child” and presented to her with behaviours consistent with having been “sexually abused and witnessing violence.”

13. On 4 February 2014 D was interviewed by the Joint Investigation Response Team (“JIRT”). It is accepted by the mother that the allegations made by the child could not be substantiated by JIRT in the circumstances detailed below. 

14. The children currently live with the mother and spend no time with the father. The mother deposes to B and C having serious eczema and undergoing tests in relation to a possible blood disorder but otherwise engaging in various extra-curricular activities and generally progressing well.

15. The father’s present circumstances are unclear.

16. The father was convicted of having custody of a knife in a public place (two offences) relating to a samurai sword and a hunting knife concealed in his car and possession of a prohibited drug (7.76grams of crystal methamphetamine) on 8 December 2017. He is currently subject to a good behaviour bond for three years under the supervision of the Department of Community Corrections. The father’s Probation and Parole Pre-Sentence report reveals his expenditure on drugs was previously about $2,000.00 per day and the father’s admissions as to mental health issues including emotional regulation and anger/aggression issues.

17. However, it appears from the father’s criminal history (Exhibit “D”) that he was further charged with resisting arrest and possession of a prohibited drug on 10 December 2017, then with common assault and negligent driving on 14 December 2017 and then possession of a prohibited weapon on 24 January 2018. The result of these further charges is not known but it is reasonable to infer that the father may be subject to a period of incarceration.

The Family Report

1. On 21 March 2017 the children, the mother and her older child and the father and his partner attended on a Senior Family Consultant for the purposes of production of a Family Report.

2. The parties’ younger child C, who was four and a half at the time of the interviews, was not interviewed due to her age. The parents acknowledged that the child would not remember the father as they separated around the time of the child’s birth. 

3. In her Report dated 19 May 2017 the Family Consultant relevantly reported the following regarding her interview with the older child, B:

   [B] asked about her father and stated, in a somewhat matter of fact tome, “I don’t have a dad. I used to have one. His name is [Mr Zotz].” [B] said she does not see him anymore and, when asked why, she stated, “He pushed Mum, in the old lounge.” When asked whether she had seen this with her own eyes or had been told about it, [B] stated “I seen it.” When asked if [the mother] talks about [the father] pushing her, [B] stated that [the mother] never talks about this and does not mention [the father] at all. [B] went on to say that [the father] “used to make [D] sad”. When asked how she knows about this, [B] stated, “I can’t remember if she told me.”

   [B] was asked if she was curious about [the father] and she stated that she was not. She then said she wants to get to know [the father], “a little bit” and she was observed to hold up her fingers, close together, and say, a “tiny bit.” When asked if she thought [the mother] wanted her to spend time with [the father], [B] stated, again in a matter of fact tone, “I think she is scared that he may hurt one of us.” When asked why [the mother] thought this, [B] stated “I don’t know”, again in a matter of fact tone.  

4. B declined to participate in an observation with the father. In circumstances where B had refused to participate, it was not considered appropriate for C to be observed with the father by herself.

5. The mother’s older child, who lived with the mother and father during their relationship, was also interviewed by the Family Consultant who relevantly reported the following about that interview:

   … [D] presented as an anxious child who looked uncomfortable about being interviewed. [D] said, in a quiet voice, “I don’t want him [referring to [the father]] to know any details about me.” She said that she was “kind of worried” about having to be interviewed for the family report, and having to think about [the father]. [D] indicated that she was extremely worried about the prospect that her sisters make (sic) have to spend time with [the father]. When asked about what her concerns are, she stated, “He’s gonna get the girls and hurt them. Or that he will find out where we live and come there.” [D] was asked whether [the mother] talks about [the father] and she stated, “She doesn’t talk about it. This helps me.”

   The family consultant said to [D] that she understood that [D] had claimed that [the father] had hurt her in some way. [D] said that she did not want to talk about it, stating, “I only like to talk about it with my counsellor.” She stated, “When I talk to counsellors, sometimes it makes me feel better” but she said that this is not always the case. [D] said that [the father], “Made me sit on the bed and he kept smacking me. He used to do mean stuff.” [D] said that she had told her counsellor about this. [D] was observed to look uncomfortable when she spoke about this. When the family consultant referred to this again later in the interview, [D] said that she did not want to talk about “the worst stuff” but remarked that, when this had been occurring, she had wanted to be with [the mother] and for [the father] to leave. She said that she had felt “yucky” and “scared” when this was occurring. [D] later said, “He always used to say, when I wanted to go toy Mum, he said, ‘don’t tell anybody or I will kill you’. [D] said that she did not tell anyone about this until “they broke up and he left one day.”

   [D] said there had been a period when she had liked [the father], stating, “He was nice for a week or two”. She claimed that he then, “started getting really angry with Mum.” [D] claimed to have seen [the father] “choke [the mother] a little once.” She also said of [the father] that he, “once took [L] and locked her in Mum’s room and Nan had to go through the window.” [D] said that [the mother] “seems scared of [Mr Zotz].”

   [D] said she remembers [J] and she stated “[The father] was mean to her.” [C] claimed that [the father] smacked [J] frequently and [J] would say ‘I don’t want to be here. I want to go home.”

   [D] was asked about how she had felt after separation and she stated, “I felt still scared that he knew where he we lived and a little bit safe that he was gone. Like half and half.” [D] was asked if she had ever felt angry with [the mother] about [the father] and she denied this, stating, “I know it’s not her fault.”

   [D] said that her sisters “don’t know anything” about [the father’s] alleged past behaviour. When asked how she would feel about the children spending time with [the father], she stated, “it makes me feel really sad. I will be really sad and be worrying that much and I remember stuff.”

1. Allegations as to sexual and physical abuse of the mother’s older child by the father were discussed by the Family Consultant in her Report:

   Records obtained under subpoena from NSW Department of Family Community Services (FaCS, Sleeve 1) indicated that the allegation was investigated by JIRT but that [C] was so anxious that she was unable to complete the interview. JIRT did not substantiate that [C] had been sexually abused. It is noted that these records indicated that the information provided by [the mother] and [D’s] counsellor, [Ms G] “is concerning” but these same records also stated, “concerns were raised due to the ambiguous nature of the disclosures.” It could not be determined in this assessment whether or not [the father] had sexually or physically abused [D] and this must be determined by the Court. If the Court was to find that sexual abuse had occurred, [the children] should not spend any time with [the father].

   While the impression given during [D’s] interview for the family report was that she was genuinely anxious about her or her siblings coming into contact with [the father], the reason why she is anxious could not be determined during this assessment. It is possible that her expression of anxiety is authentic and proportionate to what she had experienced from [the father] but it is also possible that [D] has mistakenly come to believe that [the father] had sexually or physically abused her, had been prompted by [the mother] to believe this or had been encouraged by [the mother] to lie about this. It is noted that, in records obtained under subpoena from [D’s] counsellor, [Ms G] (Sleeve 14), [Ms G] maintained that, during counselling, [D] had made multiple references to being fearful of [the father], with [Ms G] describing [D’s] level of fear in one of the sessions as “palpable.” Several references are made to [D] feeling fearful for her sisters if they were to come into contact with [the father] and also fearing that [the mother] may re-partner with [the father].  

2. Both parents reported to the Family Consultant that the father had been accused of sexually abusing his older daughter J but the Family Consultant noted that DFACS’ records indicate that the allegations of abuse were not substantiated. She further noted that J interacted with the father in a positive manner during the observation session and spends regular time with him.

3. The mother reported to the Family Consultant that the father had perpetrated family violence against her and had stalked her post separation. The Family Consultant was of the opinion that:

   … such behaviour would be consistent with coercive/controlling type family violence. This is a pattern of behaviour where the perpetrator commits violent acts, or other forms of control and intimidation, so as to induce fear and submission in their partner and thus maintain control of their partner.

4. In relation to the father’s alleged behaviour the Family Consultant opined:

   [The father] denied that he has difficulties managing anger but it appears that he may minimise his problems managing anger. [The father] has admitted that he punched a wall in anger, causing himself significant injury. Information obtained under subpoena from NSW Police (Sleeve 19) indicated that, as recently as February 2017, police happened to be in the area and intervened in a dispute between [the father] and staff at a retail store, where the staff alleged that he had threatened to “smash the place up” if they did not ensure that he could speak with the manager that day. Police noted that they spoke with [the father] about the appropriate manner to have his concerns heard but that [the father] remained “mostly irrational”, “argumentative” and “would not listen.” In addition, it was noted that NSW Police records indicated that [the father] was considered a person of interest on several occasions in relation to serious assaults, which appeared to be related to his association with [K Club]. Records obtained under subpoena from [M] Hospital (Sleeve 7) suggest that [the father] had experienced significant behaviour problems since he was in primary school, including being violent towards other children, with this continuing in high school. It was noted that [the father] was diagnosed with ADHD and prescribed increasing amounts of medication to manage his behaviour.

   [The father’s] involvement with [K] club and his participation in the sale of illicit drugs (and possibly other forms of antisocial behaviour) are concerning. Such behaviour may indicate personality related difficulties that may impair his parenting capacity. It is positive that [the father] has left [K Club]. Whether [the father] continues to engage in criminal behaviour is unknown.

5. The mother presented to the Family Consultant as “significantly anxious” about the children spending time with the father. The Family Consultant was clear that the mother’s mental health needed to be protected so that she could continue to parent the children appropriately.

6. The Family Consultant came to the following conclusions:

   Given [D’s] anxious presentation, concerns are held that, if [the children] spend time with [the father], this may place [D’s] mental health at significant risk, as well as negatively affect the sibling relationships and [D’s] relationship with [the mother]. Given this, [the mother’s] unwillingness to promote the children’s relationship with [the father], it is assessed that is unlikely to be in the children’s best interests to re-establish a relationship with [the father].

   It is acknowledged that there are potential losses for [the children] in not spending time with [the father] and these include the impact on their identity development with regards to knowing [the father] and the paternal family, and also the loss of a relationship with their half siblings. It was assessed, however, that priority must be given to maintaining the mental health of the children’s primary carer and primary sibling relationship over potential relationships, however important these are.

7. It was recommended that the mother hold sole parental responsibility for the children and that the children spend no time with the father. In the event the Court determines that it is appropriate for the children to spend time with the father, the Family Consultant recommended that such time occur at a contact centre.

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 this matter it is clear in the overshadowing circumstances of violence and abuse perpetrated by the father that the presumption will not apply and that the mother should have sole parental responsibility for the children.

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 Family Consultant opined that the children have an established and positive relationship with the mother but have no established relationship with the father due to the mother declining to allow contact between him and the children. 

4. It is readily apparent that the children’s ongoing relationship with the mother as their primary carer is important, significant and valuable.

5. The father has had extremely limited involvement in the children’s lives to date and that involvement has been characterised by him perpetrating significant family violence against the mother and D in the presence of the children and possible physical and sexual abuse of D.

6. There is very little benefit to the children in having a meaningful relationship with their father at this time. The Family Consultant expresses concerns as to the possible negative effects on the children in the long term if they do not develop a relationship with their father and the extended paternal family but also notes that the preservation of the children’s relationships with their mother and D should be prioritised.

7. In any event, the father has discontinued his application for parenting orders and can be taken to no longer be pursuing a relationship with the children.

Section 60CC(2)(b) – need to protect

1. This is an overwhelming consideration and must be given priority over issues as to relationship. In the light of the matters discussed above, there are unacceptable risk factors in the children’s possible engagement and time with the father on the basis of the father exposing the children to family violence.

2. It is to be noted that the father’s drug test results (Exhibit “C”) indicate that the father has tested positive for amphetamines and methamphetamines on multiple occasions including as recently as February 2018 and he was convicted of possessing methamphetamines in December 2017 (Exhibit “I”).

3. The Family Consultant opined that:

   Given the serious nature of the allegations made against [the father], protecting the children from risk of harm must be prioritised over organising for the children to spend time with [the father].  

4. This consideration, which is to be given primacy, is in itself supportive and determinative of the orders sought by the mother.

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. Given her age, it is the Family Consultant’s opinion that the Court could not place any weight on B’s stated views. C is too young to have expressed any views in these proceedings.

4. It is clear that the children have important and significant relationships with their mother and their half-sister D with whom they have lived their entire lives. It is unfortunate that given the children’s lack of relationship with the father, they will be unable to have the benefit of a relationship with their paternal half-sisters, particularly J who appeared to miss the children when observed by the Family Consultant in March 2017.    

5. The father has spent no time with the children since late 2013 and his behaviour towards the mother and children demonstrates a poor attitude towards the responsibilities of parenthood. The father does not currently provide any support in maintaining the children, the mother alone has at all times provided for the children since separation. It appears the father is not currently paying child support on a regular basis.

6. In disengaging from these proceedings the father can be taken to be forfeiting any opportunities for him to participate in decision making or spend time with the children in the future.  

7. If orders are made as sought by the mother, there will be no change in the children’s current circumstances with the exception of the order sought by the mother that she be allowed to change the children’s names. That order will be dealt with later in these Reasons. Accordingly, there is no practical difficulty or expense associated with the orders sought by the mother.

8. The father’s behaviour, particularly his perpetrating family violence against the mother to which the children were exposed, raises serious concerns about his capacity to care for the children should he spend time with them. As previously stated, the risks posed by the father to the children are substantially determinative of this application.

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

Change of name

1. The remaining issue to consider is the order sought by the mother that she be at liberty to “approach the Registrar of Births Deaths and Marriage NSW to have the change of name of the children recorded”.

2. The mother she does not specify what name she seeks the children be known by or indeed which of the children in her care she refers to.

3. Her affidavit infers that the issue relates to the child D having a different surname to the subject children.

4. The child D is not the subject of these proceedings and cannot be the subject of such an order. As to the subject children there is no evidence adduced to support the order sought in any event. This aspect of the mother’s application will be not be the subject of any order.

5. Orders are made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 May 2018.

Legal Associate: 

Date:  4 May 2018