FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arness & Murad [2023] FedCFamC1F 750
File number(s): MLC 1506 of 2020 Judgment of: MCGUIRE J Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – PARENTING – Where respondent father left the Court prior to the taking of evidence – Matter adjourned to allow father opportunity to prosecute his case – No appearance by the father – Undefended hearing Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 69ZW,102NA Cases cited: Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
McCall & Clark (2009) FLC93-405; [2009] FamCAFC 92
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 21 and 23 August 2023 Place: Melbourne Counsel for the Applicant: Mr Kanarev Solicitor for the Applicant: Bowlen Dunstan and Associates Pty Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms Teicher Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd ORDERS
MLC 1506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARNESS
Applicant
AND: MR MURAD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application for Final Orders filed by the mother on 14 January 2022 proceed to final hearing undefended the father.
2.All extant parenting orders be discharged.
3.The mother have sole parental responsibility for the children X born 2013 and Y born 2017 (“the children”).
4.The children live with the mother.
5.The children spend time and communicate with the father as follows:
(a)On four occasions each year with such time to be allocated evenly throughout the year but such time to be nominated by the mother with not less than 28 days prior notice on each occasion to the father and such time-with to be supervised by E Contact Centre with the father to pay all associated costs (and if possible such time to occur approximate to special occasions such as birthdays and religious holidays) with such time to occur for durations of up to 3 hours on each occasion or such time as can be accommodated by the contact service;
(b)For the purposes of the children spending time with the father as set out above, the mother is to deliver the children to the contact service not later than 15 minutes prior to the commencement of such time and the father is not to attend at the contact service earlier than five minutes before such time and the father is to leave the premises of the contact centre immediately upon the completion of each contact and is not to loiter within 500 metres of the contact centre with the mother to collect the children approximate 15 minutes after the completion of such visit;
(c)Such variations of the above or additional time for the children with the father as may be agreed between the parents from time to…
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CaseChat Overview and Summary
In the matter of Arness & Murad, the father sought various parenting orders following the separation of the parties. The court was required to determine the appropriate allocation of parental responsibility for the children, as well as their living arrangements. The legal issues included whether there was a history of family violence that would rebut the presumption of equal shared parental responsibility, and whether the father's absence from the proceedings and his mental health issues warranted a different outcome. The court concluded that the presumption of equal shared parental responsibility did not apply due to the history of family violence and the non-cooperative nature of the relationship between the parents. The court also found that the father's absence from the proceedings and his mental health issues were significant factors that warranted awarding sole parental responsibility to the mother.
The court found that the children were settled, stable, and happy in their home and relationship with the mother, and that the father had not taken up the opportunity to spend time with the children since December 2022. The court was concerned about the stability of the father's mental health and his commitment to a relationship with the children. The court also noted that the father had not participated in the proceedings, which was a matter of serious impact on the children. The court was satisfied that the relationship between the parents was non-communicative and non-cooperative, and that it would not be in the children's best interests to exercise equal shared parental responsibility. As a result, the court awarded sole parental responsibility to the mother and ordered that the children live with her.
The court's decision was based on the evidence presented, including the mother's affidavit detailing a history of family violence, the Family Report recommending that the children live primarily with their mother, and the father's absence from the proceedings and mental health issues. The court emphasised that parenting orders are not final in the sense that there can be no material or significant change to the circumstances of either parent or the children. However, repeated litigation of parenting matters is not seen as being in the children's best interests. The court made an order that the mother have sole parental responsibility for the children, and that they live with her.
The court found that the children were settled, stable, and happy in their home and relationship with the mother, and that the father had not taken up the opportunity to spend time with the children since December 2022. The court was concerned about the stability of the father's mental health and his commitment to a relationship with the children. The court also noted that the father had not participated in the proceedings, which was a matter of serious impact on the children. The court was satisfied that the relationship between the parents was non-communicative and non-cooperative, and that it would not be in the children's best interests to exercise equal shared parental responsibility. As a result, the court awarded sole parental responsibility to the mother and ordered that the children live with her.
The court's decision was based on the evidence presented, including the mother's affidavit detailing a history of family violence, the Family Report recommending that the children live primarily with their mother, and the father's absence from the proceedings and mental health issues. The court emphasised that parenting orders are not final in the sense that there can be no material or significant change to the circumstances of either parent or the children. However, repeated litigation of parenting matters is not seen as being in the children's best interests. The court made an order that the mother have sole parental responsibility for the children, and that they live with her.
Orders
Orders of the court
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Background
Background to the litigation
The document referenced being the father's Amended Response sealed 28 January 2022 which sets out the orders he seeks as:(1)That the parties have equal shared parental responsibility for the children [X] born […] 2013 and [Y] born […] 2017 (the children).(2)The children live with the wife.(3)That the Husband be excused from further particularising his parenting orders sought pending the outcome of his psychiatric assessment in this matter.(4)Such further Orders as this Honourable Court deems appropriate.BACKGROUND·1976 – The father was born. ·1984 - The mother was born. ·2009 - The parties met. ·2012 - The parties married and commenced cohabitation. ·2013 - X was born. ·2017 - Y was born. ·2018 - Family Violence notice issued by server. ·2 August 2019 - Parties separated on a final basis. ·Late 2019 - A final intervention order made in favour of the mother. ·12 February 2020 - The mother initiates property proceedings in these courts. ·30 April 2020 - The mother amends her application to include parenting orders. ·31 August 2020 - Interim parenting orders made providing for the children to live with the mother and spend supervised time with the father ·7 December 2020 - Orders made inter alia for the appointment of the ICL. ·3 November 2021 - Orders were made for the father to attend upon Dr G, psychiatrist, in compliance with orders of 7 December 2020.·22 December 2021 - Further orders and direction are made with respect to the father undertaking a psychiatric assessment. ·16 February 2022 - Orders made by Judge O’Shannessy discharging Orders made on 7 December 2020 with respect to the father’s supervised time with the children. Further orders made that until further order the parties do all things necessary to appoint H Contact Centre at Suburb J to supervise time between the father and the children in each alternate week and for such time not to exceed three hours in duration.·June 2022 - Father commenced spending supervised time with the children under the supervision of H Contact Centre.·17 June 2022 - Orders made pursuant to section 102NA of the Act with respect to both the mother and the father who at the time were both self-represented.·August 2022 - The father attended upon Dr K for assessment with such report disclosing that the father saw supervised visits as “distressing for him because he finds himself recalling the difficult relationship”. He also discloses to shoplifting, accessing pornography, suicidal thoughts, temper tantrums, unclear sense of self, and angrily driving.·11 August 2022 - Both parties attended on Mr L for an updated Family Report with the father noted as “oppositional and aggressive from the outset of the assessment”. Mr L informed the father the police would be called if he did not leave the building. The father subsequently complied.·August 2022 - The mother attended upon Dr K for assessment.·15 September 2022 - Orders were made by Judge O'Shannessy for the parties and the children to attend upon Ms B for preparation of a Family Report.·3 November 2022 – Ms B’s Family Report prepared.·November 2022 - Report of H Contact Centre with respect to the father’s interim time with the children.·5 December 2022 - Orders made discharging previous spend time orders between the father and the children. Orders made that the parties take all necessary steps to enable the children to spend supervised time with the father in each alternate week and for such time not to exceed three hours in duration and the supervisor be a professional supervisor as agreed between the parties and failing agreement as nominated by the Independent Children’s Lawyer. The father be responsible for the costs of professional supervision. The Final Hearing listed on 5 December 2022 vacated and the matter transferred to Division 1 of the Court.·9 February 2023 – the Judicial Registrar releases a report pursuant to section 69ZW of the Act from the Department of Families, Fairness and Housing.·17 February 2023 – Procedural orders by the Judicial Registrar listing the matter for final hearing commencing 21 August 2023 with an estimated hearing time of five days.RELEVANT LAW
Evidence
Evidence Before The Court
Importantly, however, the presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child, or another child habitually a member of the family unit. In this matter the mother asserts family violence and argues that the presumption does not apply. In any event, the presumption is rebuttable on evidence that an order for equal shared parental responsibility will not be in the best interests of the children.EVIDENCE Mother The mother's affidavit of 21 July 2023, after setting out the background of the parties, references family violence at [10] and following. She alleges a long history of family violence. She says that there is currently a final intervention order in place made by a state Magistrates Court in early 2023 listing herself and the children as protected persons. That order was obtained in respect of an incident from 2018. The current order is an extension of a previous intervention order. At [13] the mother alleges that the father has breached the intervention order on numerous occasions and has been charged with breaches. The mother’s affidavit particularises in detail asserted incidents of family violence during the relationship where she was the victim. She alleges family violence of physical, coercive, and emotional types. At [34] the mother says that she has been the primary carer of the children including taking them to and from school, attending parent teacher interviews, and arranging documents and appointments. The mother says at [36] that the children are in good health but have suffered through witnessing family violence perpetrated by the father with particular impact on X. The mother details limited time that the children have spent with the father since separation, including him not taking up time with the children provided by interim orders noting that there has been no time for the father with the children since December 2022. The mother at [65] asserts family violence of a financial type noting the parties entered into consent orders in September 2022 for property settlement but where she is obliged to bring Enforcement proceedings with such listed for September this year and where she says she is still owed the sum of $82,485 by the father plus interest and costs. At [67] the mother deposes to the father leaving a laptop computer at the home where she has viewed files containing material of the nature of “incest/underage/animal pornography videos and photos”. The mother says that she has involved Victoria Police who responded to her in 2023 that the material was not deemed “child abuse material”.Family Report – Ms B The Family Report of Ms B is dated 3 November 2022 and prepared after interviews on 17 and 21 October 2022. Ms B states that she had the advantage of the copious court file together with the previous report of Mr L and an affidavit of Dr K filed 22 August 2022. Ms B’s recommendations are as follows: 133.The issue of parental responsibility for the children as determined by the Court.134.[X] and [Y] live primarily with their mother.135.Consideration is given to maintaining the children’s current parenting arrangements until confirmation has been received from the DFFH that any ongoing investigations have been completed.136.Upon the above confirmation being completed, that this assessment is completed.
Decision
Reasons for decision
It is important for the father to understand that parenting orders can only be ‘final’ in the sense that there be no material or significant change to the circumstances of either parent of the children. If the issues that now trouble the Court including but not limited to the father's commitment to spending time with the children; his mental health issues; and the children's views change in the future then there will always be the opportunity to have these matters brought back to court. It should be understood, however, as a matter of policy, repeated litigation of parenting matters is not seen as being in the children’s best interests. FINDINGS AND CONCLUSIONS I am able to find on the evidence that the children are settled, stable and happy in their home and in their relationship with the mother. The evidence is that they are achieving and adjusted personally and socially. There remains ongoing concerns as to the stability of the father’s mental health and its manifestations perhaps at times of stress or agitation as evidenced in the courtroom before me. I am mindful, however, that the husband has established relationships with his health professionals and it is hoped that he can demonstrate compliance with medication and stability in his emotional and psychiatric health. Due to the husband’s choice not to participate in these proceedings then the Court has no real understanding of why the father has not taken up the opportunity to spend time with the children, albeit supervised, since December 2022. Given the children’s ages, any lengthy gaps in direct contact between children and a parent is likely to damage any established relationships. As far as the Court can determine, the father’s application included an order that he delegate primary care of the children to the mother consistent with the status quo. As such, the evidence as to the mother appears to be that he concedes generally her capacity to care for the children which is consistent with the evidence before the Court. Although I have had evidence from the bar table as to some recent reluctance in the children to continue a relationship with their father, the evidence of the Family Report suggests that the children were comfortable in their father’s presence and the orders proposed by the ICL, and now agreed by the mother, would accommodate the children maintaining a form of relationship with the father albeit extremely limited but where continuing concerns as to the father’s mental health and commitment to a relationship with the children remain unaddressed. In all the circumstances I will make an order that the mother have sole parental responsibility for the children. Firstly, the father has not seen fit to remain for the conduct of this trial which, of course, is a matter of such serious impact on the children that it references directly the obligations of parental responsibility. Secondly, I am satisfied that there has been a history of family violence in this matter such that the presumption of equal shared parental responsibility does not apply. I am also satisfied that the relationship between the parents is essentially a non‑communicative and non-cooperative one such that it would not be in the children’s best interests to exercise equal shared parental responsibility. The children will live with the mother and it follows that she should have sole parental responsibility for them.
Ratio Decidendi
Legal Principle Established
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