FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Argyros & Jarvi [2022] FedCFamC1F 65
File number: BRC 3735 of 2019 Judgment of: CAREW J Date of judgment: 18 February 2022 Catchwords: FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where the father is found to have perpetrated family violence on the mother and children – Where the father poses an unacceptable risk of harm to the children – Where the risk cannot be ameliorated by supervision – Where the presumption of equal shared parental responsibility does not apply – Where the mother is granted sole parental responsibility – Where the father is restrained from contacting or communicating with the mother and children – Where the mother and children are at liberty to relocate overseas. LegYtion: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Babcock & Waddell [2019] FamCAFC 129
Baghti & Baghti & Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
N and S and the Separate Representative (1996) FLC 92-655
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 127 Date of hearing: 15 – 19 November 2021 Place: Brisbane Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr George Solicitor for the Respondent: Redland Legal Pty Ltd Counsel for the Independent Children's Lawyer: Ms Dart Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
BRC 3735 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARGYROS
Applicant
AND: MR JARVI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
18 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born … 2013 and Y born … 2015 (“the children”).
2.The children live with the mother.
3.The mother be at liberty to relocate the children’s residence outside of the Commonwealth of Australia to Country Q.
4.The father be restrained from spending any time with or communicating with the children unless initiated by the children or the mother.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of the mother and children, the father be restrained from:
(a)Coming into contact or attempting to come into contact (or having another person seek to contact) or communicating with by any means or attempting to communicate with (or having another person attempt to) the mother;
(b)Coming within 500 metres of any residence that the mother or the children reside at from time to time.
6.Pursuant to s 68C of the Family Law Act 1975 (Cth) if a police officer believes, on reasonable grounds, that the father has breached the injunction issued in paragraph 5 herein by causing, or threatening to cause, bodily harm to the protected person or harassing, molesting or stalking…
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- AGLC
- Argyros & Jarvi [2022] FedCFamC1F 65
- Case
- [2022] FedCFamC1F 65
- Decision Date
CaseChat Overview and Summary
The case of Argyros & Jarvi involved the parents, the mother and the father, in a dispute regarding the parenting arrangements for their children. The matter was heard in the Family Court of Australia. The primary issue the court had to decide was the determination of the parenting arrangements for the children, particularly in light of the father's history of domestic violence against the mother and the children. Additionally, the court had to consider the financial implications of the case, including the legal fees incurred by the mother and the father’s ability to pay the child support assessment.
The court examined the evidence provided regarding the father’s conduct, including multiple instances of domestic violence, breaches of domestic violence protection orders, and aggressive behavior towards law enforcement and others. The court found that the father’s behavior constituted family violence and posed an unacceptable risk of harm to the children. The court also noted the father's failure to call potentially exculpatory evidence from his family members, leading to an adverse inference being drawn against him. Given the overwhelming evidence of the father's violent tendencies and the risk he posed to the children, the court decided that it was in the best interests of the children for the mother to have sole parental responsibility.
The court further considered the financial aspects of the case, including the substantial legal fees incurred by the mother and the father’s child support assessment. The court acknowledged the father's significant income and ordered him to contribute towards the mother's outstanding legal fees and to pay the child support assessment.
In conclusion, the court granted the mother sole parental responsibility for the children and ordered the father to pay the child support assessment and contribute towards the mother's legal fees. The court's decision was based on the best interests of the children, taking into account the father's history of family violence and the associated risk of harm to the children.
The court examined the evidence provided regarding the father’s conduct, including multiple instances of domestic violence, breaches of domestic violence protection orders, and aggressive behavior towards law enforcement and others. The court found that the father’s behavior constituted family violence and posed an unacceptable risk of harm to the children. The court also noted the father's failure to call potentially exculpatory evidence from his family members, leading to an adverse inference being drawn against him. Given the overwhelming evidence of the father's violent tendencies and the risk he posed to the children, the court decided that it was in the best interests of the children for the mother to have sole parental responsibility.
The court further considered the financial aspects of the case, including the substantial legal fees incurred by the mother and the father’s child support assessment. The court acknowledged the father's significant income and ordered him to contribute towards the mother's outstanding legal fees and to pay the child support assessment.
In conclusion, the court granted the mother sole parental responsibility for the children and ordered the father to pay the child support assessment and contribute towards the mother's legal fees. The court's decision was based on the best interests of the children, taking into account the father's history of family violence and the associated risk of harm to the children.
Orders
Orders of the court
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Background
Background to the litigation
Prior to considering the issues it will be helpful to set out some background and the legal principles that apply to all parenting cases. BACKGROUND The mother is 41 years of age. She moved to Australia from her home in Country Q after commencing a relationship with the father in 2009. She studied at university but has not been employed for many years. The mother has no family in Australia. The father is 40 years of age. He was born in Australia. He is a tradesperson in the construction industry. The mother and father met and married in 2009 and had their first child, W (“W”), in 2010. It is apparent that the parents only married because of the pregnancy. Final separation occurred on 1 August 2016. The parents have two other children. X was born in 2013 and Y was born in 2015. In December 2017 W was diagnosed with a rare cancer and tragically died in 2018. The father spent very little time with the children after separation and was working interstate for extended periods. He did not see X and Y from the date of W’s funeral in 2018 until several unsuccessful attempts at supervised visits occurred during the period September to October 2020. The father has not seen them since. The mother commenced proceedings on 1 April 2019. There have been five final domestic violence protection orders made against the father for the protection of the mother and all bar the first one also included the children as persons protected. The first protection order was made in 2011 for a period of two years and the most recent protection order was made on 2 November 2020 and does not expire 2 November 2025. In 2013 the father was fined for three contraventions of the protection order with no conviction recorded. Also in 2013, the father was placed on a good behaviour bond on his own recognisance of $1,000 for another contravention of the protection order. The father breached his good behaviour bond two days later, and was then placed on probation for another contravention of the protection order and for assaulting or obstructing a police officer. Later that same year, the father breached his probation order and was convicted of a further contravention of the protection order and assaulting or obstructing police. The father was fined $2,200. The mother has paid legal fees to date of $78,744 and has outstanding fees and disbursements of $28,345. Her estimated legal fees and disbursements for the five day trial are between $40,000 and $50,000. Due to the existence of a protection order which remains in force until 1 October 2025, the mandatory provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) prohibited cross-examination by the father of the mother. Accordingly, pursuant to the Commonwealth Government legal aid scheme the father was provided with legal representation at the expense of the taxpayer. The scheme is not subject to a means test. The legal fees incurred up to and including the trial are $15,483. The father’s taxable income for 2020 was $113,000. During his oral evidence the father said his current weekly income is about $2,000 after tax. The father’s current child support assessment is $25,546 per annum. He has arrears of $4,630. WHAT LAW GOVERNS THE DETERMINATION OF PARENTING DISPUTES?
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 10 June 2021 the father made two telephone calls to the K Company after hours service centre. A report was made to police and recordings of the calls were provided to police. The police records note that the father sounded under the influence of alcohol and demanded the number of the manager. The father swore during the conversation but apologised when asked not to speak in that manner. The manager informed the police that earlier in the year he had received a phone call from the father in which he had said “the bitch left me with nothing” when referring to the mother. Conclusion about whether or not the father poses an unacceptable risk of harm The father seeks to portray himself as a victim, and accuses the mother of being a compulsive liar. His main focus in the trial was to seek to discredit the mother’s allegations of physical violence but, in my view, the evidence of the father perpetrating family violence upon the mother, both physical and verbal, is overwhelming. I find that the mother endured the father’s appalling abuse and denigration for years. Much of that abuse occurred in the presence of the children. At times the violence was directed at the children and I have no doubt that it caused them to be fearful. The evidence from police records corroborate the father’s belligerent, aggressive and violent tendencies. He has assaulted police, resisted arrest, and issued threats of harm to police, his former solicitor and a neighbour. Further, the maternal grandmother was herself a victim of a vicious attack by the father on 5 September 2010. I accept the maternal grandmother’s evidence of this attack entirely. The father did not call, what he contends would have been, exculpatory evidence from his family members. His failure to do so causes me to draw an adverse inference i.e. their evidence would not have assisted his case.[19] [19] Jones v Dunkel (1959) 101 CLR 298. I accept the mother’s account of the wedding night when the father pushed her and began to strangle her. The mother gave a detailed and particularised account of that incident and events leading up to it. The father’s concessions on key points e.g. that they argued about his drinking and behaviour at the wedding, argued about going out, and did not spend the night together, lends weight in my view to the mother’s account. I find that the father attempted to strangle the mother on 25 August 2011. The mother made a contemporaneous diary note of the father strangling her on 25 August 2011. When she called police she told them that he was strangling her. Her denial of attempted strangulation when police arrived was likely to be for a number of reasons: she loved the father and did not want to get him into serious trouble with police, she was scared of him, and she felt trapped in Australia with a baby and no permanent rights of residence or rights to social security. Police noted the mother’s attempt to minimise the incident. Although the police could not see any injury to the mother’s neck, I do not find that this negates her allegation. There is no evidence of what the mother was wearing such that any injury would necessarily have been apparent. There is no medical evidence to indicate how long it would take for bruising or marks to appear or even if the method used by the father would have left marks.
Ratio Decidendi
Legal Principle Established
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