FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allum & Ervin [2022] FedCFamC1F 177
File number(s): PAC 643 of 2016 Judgment of: HANNAM J Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother makes serious allegations against the father including in relation to sexual abuse of the child and family violence – Where the mother also alleges that the child’s mental health difficulties arise from the child’s fear of the father and her experience of being sexually abused by him – Where the father alleges that the mother maliciously and intentionally constructed a false allegation that he sexually abused the child – Where the parties otherwise make competing contentions about the risk of psychological harm posed to the child – Where differing suites of orders are proposed depending on the findings of the Court – Where the Court is not satisfied that the father poses an unacceptable risk of harm to the child on any basis – Where in light of expert evidence the Court considers that the mother holds an overvalued belief that the father had abused the child rather than maliciously constructed a false allegation – Where the Court considers the psychological difficulties experienced by the child most likely arise from her exposure to the parental dispute and dynamics – Where significant weight is attached to the expert’s opinion about the steadfast nature of the mother’s beliefs in finding that the child would be at an unacceptable risk of psychological abuse if she were to continue to live in the mother’s primary care – Orders made in the terms proposed by the ICL providing in summary that the father hold sole parental responsibility for the child and that the child live with the father and spend defined time with the mother conditional upon the mother continuing to engage in psychological treatment and the family attending family therapy – Orders otherwise made as proposed by the mother that the child’s surname be changed to include the mother’s surname and be hyphenated. Legislation: Australian Passports Act 2005 (Cth) s 11(1)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC
Births, Deaths and Marriages Registration Act 1995 (NSW) s 28
Cases cited: Beach and Stemmler (1979) FLC 90-692
Chapman and Palmer (1978) FLC 90-510
Flanagan & Handcock (2001) FLC 93-074
Fooks & McCarthy (1994) FLC 92-450
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
Langmeil & Grange (2010) FLC 93-427
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483;
Napier & Hepburn (2006) FLC 93-303, (2007) 36 Fam LR 395
Reynolds & Sherman [2016] FamCAFC 240
Division: Division 1 First Instance Number of paragraphs: 465 Date of hearing: 6-10 September 2021, 22 October 2021 Place: Parramatta (via videolink) Counsel for the Applicant Mr Blank Solicitor for the Applicant Litigant…
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- AGLC
- Allum & Ervin [2022] FedCFamC1F 177
- Case
- [2022] FedCFamC1F 177
- Decision Date
CaseChat Overview and Summary
In the case of Allum & Ervin, the parties, who are both in their 40s, were involved in a relationship that began in 2012 and ended in 2013. The dispute revolves around the proper parenting arrangements for their child, born in 2014. Both parents have been engaged in litigation since 2016, marked by significant conflict and acrimony. The court is tasked with determining the best interests of the child, considering the parents' inability to cooperate and the impact of their dispute on the child.
The legal issues before the court include the allocation of parental responsibility and the determination of appropriate parenting arrangements. The court must consider whether either parent has engaged in abuse or family violence, and whether equal shared parental responsibility is in the child's best interest. Given the parents' history of conflict and inability to make joint decisions, the court must decide whether sole parental responsibility should be awarded to the parent with whom the child will primarily reside.
The court found that the parents have demonstrated no capacity for joint decision-making and have subjected the child to a "horrible experience" due to their ongoing conflict. The mother has also failed to comply with court orders regarding the child's time with the father. Considering these factors, the court determined that it is in the child's best interest to award sole parental responsibility to the parent with whom the child will primarily reside. Additionally, the court rejected the mother's allegations of sexual abuse by the father, finding them to be without merit.
The final orders of the court include the award of sole parental responsibility to the mother, with specific arrangements for the father's time with the child. The court also made orders regarding the resolution of financial disputes between the parties and the use of intermediaries to facilitate communication and exchanges of the child.
The legal issues before the court include the allocation of parental responsibility and the determination of appropriate parenting arrangements. The court must consider whether either parent has engaged in abuse or family violence, and whether equal shared parental responsibility is in the child's best interest. Given the parents' history of conflict and inability to make joint decisions, the court must decide whether sole parental responsibility should be awarded to the parent with whom the child will primarily reside.
The court found that the parents have demonstrated no capacity for joint decision-making and have subjected the child to a "horrible experience" due to their ongoing conflict. The mother has also failed to comply with court orders regarding the child's time with the father. Considering these factors, the court determined that it is in the child's best interest to award sole parental responsibility to the parent with whom the child will primarily reside. Additionally, the court rejected the mother's allegations of sexual abuse by the father, finding them to be without merit.
The final orders of the court include the award of sole parental responsibility to the mother, with specific arrangements for the father's time with the child. The court also made orders regarding the resolution of financial disputes between the parties and the use of intermediaries to facilitate communication and exchanges of the child.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is which of the competing proposals is proper having regard to the best interests of the child as the paramount consideration.BACKGROUND The parents who are both in their 40s started a relationship in 2012 and began living together in the latter half of the same year. In 2013 the child was conceived and difficulties between the parties in their relationship began to emerge a few months later. The relationship between the parties was short lived. The father moved from the home he had occupied with the mother in late 2013 and the mother considers that the relationship was then at an end. The father contends that the parties did not finally separate until about 12 months later. The child was born in 2014 and for at least a month or so the father spent some nights each week at the mother’s home assisting in providing care for the child. The father contends that the parties separated on a final basis in late 2014 when the child was nine months old. At that time the father declined a job opportunity interstate in order to stay in Sydney to continue his involvement in the child’s life. From this time the child spent time with him on a weekday evening including over meal time and for a longer period each Sunday. Despite the parties agreeing that by late 2014 their relationship was at an end, in early 2015 the mother and child spent time at the paternal grandparents’ home with the father. In early 2015 they engaged in sexual activity which the father maintains was consensual but which the mother asserts was non-consensual. This matter is considered later in these Reasons when considering the question of family violence in the parties’ relationship. A few days after the last-mentioned incident, the mother contacted the father by email informing him that until they reached agreement about the father’s payment of child support she would not be “confirming any visitation agreements”. The mother then ceased facilitating the child spending time with the father due to this dispute about child support. By early 2015, the child was once again spending time with the father each week on one weekday evening and for six hours on a Sunday but the midweek time was subsequently ceased by the mother on the basis that she claims to have felt unsafe in the father’s presence. The father denies that there is any basis upon which the mother could feel unsafe in his presence. Between mid and late 2015 the father began taking the child to a pre-school playgroup for two hours on a weekday morning and the child’s time with him for six hours on a Sunday continued. From late 2015 to early 2016 the mother did not facilitate the child seeing the father or the paternal family (including over Christmas) which apparently was related to the father withholding consent for the mother to take the child overseas. The parties also became engaged in another argument about child support. In February 2016, the father commenced these proceedings in the Federal Circuit Court (as it was then known). In the same month he moved to live a further distance from the home of the mother and child.
Evidence
Evidence Before The Court
For the foregoing reasons, the totality of the evidence in relation to this allegation will be set out and considered, rather than only the evidence that the mother now contends will lead to the Court finding that the father did sexually abuse the child. The mother’s evidence Under the heading of “Allegations of sexual abuse” in her trial affidavit, and a subheading titled “Initial concerns before commencement of overnight time” the mother deposes to various incidents dating from as early as 2017, nearly 18 months prior to the child’s initial “disclosure” of sexual abuse. In setting out this history, the mother first deposes to an occasion in 2017 when the child, then aged three, while travelling in the car began banging her head against her car seat and crying. When asked what was wrong the child responded “I want to tell you about daddy but I can’t”. The mother then encouraged the child to speak to her pre-school teacher about what was upsetting her that day. When the mother collected the child from pre-school that afternoon the pre-school teacher told her that the child was “upset and said daddy was bad and doesn’t want to see her again” and that she “doesn’t want to sleep at daddy’s house”. The mother also deposes that this teacher advised her to be “very concerned” about what the child had said and gave her a handwritten note recording the conversation with the child. The mother deposes that later that evening the child told her that she wanted to tell her maternal aunt “about my secret with daddy” and that for this reason the mother organised a video telephone call between the child and maternal aunt. The maternal aunt deposes to having a conversation with the child in which the child initially said that she didn’t have something to talk about but when asked whether she was sure, the child said she had “a secret” and that it was “a secret about my dad”. The mother did not raise this incident with the father. Under the same subheading, the mother deposes to another occasion in late 2017 when she collected the child from pre-school and the child’s teacher reported an incident that day in which the child removed her underwear and “exposed herself to other children”. The mother also deposes that the child started to develop behaviours which the mother describes as “of a sexual nature”. The mother gives as an example her observations of the child touching her “vagina through her clothing” and saying that “it feels great”. The maternal grandmother also deposes to noticing the child regularly touching and rubbing at her labia through her clothes from around 2017 and in late 2017 insisting upon kissing the maternal grandmother on the lips rather than on the cheek or forehead which had been their usual custom. The mother further sets out an incident when the child in the course of play with other children ran into the bedroom, took off her underwear and lay on the bed, spreading her legs open.
Decision
Reasons for decision
Proceedings in relation to the child’s parenting have been on foot for almost the entirety of the child’s life and the high degree of conflict and acrimony between the parents and their incapacity for cooperative parenting have resulted in the child experiencing in the words of the expert a “horrible experience for all of her life”. The proceedings have also been marked by the mother failing to comply with orders from time to time (including in particular a period of over 12 months since early 2021) for the child’s time with the father notwithstanding that such orders were made with her consent. In these circumstances, it is particularly important that the dispute between the parents is resolved and that the child can settle into a normalised life that does not involve exposure to the dynamics of conflict between her parents.CONCLUSIONParental 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[27] 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. [27] (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 them (subsection 61DA(4)). In these proceedings neither of the parties proposes an order for equal shared parental responsibility. This sensibly reflects the reality that the parents have demonstrated no capacity for joint decision-making. Each of the parties and the ICL proposes that sole parental responsibility be held by the parent with whom the child is to live, with the exception of the mother’s proposal if the child is to live with the father in which the case she proposes no orders for parental responsibility but rather proposes interim orders for the child’s parenting otherwise as explained.
Ratio Decidendi
Legal Principle Established
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