Audley & Cayton

Case [2023] FedCFamC1F 697

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Audley & Cayton [2023] FedCFamC1F 697

File number(s): MLC 9403 of 2020
Judgment of: CARTER J
Date of judgment: 21 August 2023
Catchwords: FAMILY LAW – PARENTING – CHILDREN – whether the father poses an unacceptable risk to the children – where there have been serious allegations of family violence – where the father has chronic mental health vulnerabilities and no current evidence from any treating medical or allied health practitioner – whether there should be no orders for time and communication beyond sending letters and gifts – children’s best interests – orders made  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 102NA
Cases cited:

Bielen & Kozma (2022) 66 Fam LR 59

Cotton & Cotton (1983) FLC 91-330

Isles & Nelissen (2022) 65 Fam LR 288

Loddington & Derringford (No 2) [2008] FamCA 925

Mazorski v Albright (2007) 37 Fam LR 518

McCall and Clark (2009) FLC 93-405
Division: Division 1 First Instance
Number of paragraphs: 145
Date of hearing: 3 – 4 July 2023
Place: Melbourne
The Applicant: Litigant in person
Counsel for the Respondent: Mr Kiernan
Solicitor for the Respondent: Cinque Oakley Bryant
Counsel for the Independent Children's Lawyer: Mr Eidelson
Solicitor for the Independent Children's Lawyer: Kordell Lawyers

ORDERS

MLC 9403 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR AUDLEY

Applicant
AND:

MS CAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

21 AUGUST 2023

THE COURT ORDERS THAT:

Parental responsibility

1.The mother have sole parental responsibility for the children X born 2013, Y born 2016 and Z born 2018.

2.The children live with the mother.

Communication with the children

3.The father is at liberty to send the children cards, letters and gifts to the children via a Post Office Box address supplied by the mother.

4.The mother facilitate any reply the children wish to make via a post office box address supplied by the father.

5.For the purposes of Orders 3 and 4, within 21 days of the making of these orders, and via the Independent Children’s Lawyer:

(a)the mother shall provide the father with a Post Office Box address for the father to communicate with the children; and

(b)the father shall provide the mother with a Post Office Box address for the children to use to communicate with him.

Miscellaneous

6.The order for the appointment of the Independent Children’s Lawyer is discharged 21 days from the making of these orders.

7.All applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Note:   The form…

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AGLC
Audley & Cayton [2023] FedCFamC1F 697
Case
[2023] FedCFamC1F 697
Decision Date

CaseChat Overview and Summary

In the matter of Audley v Cayton, the Federal Circuit and Family Court of Australia was tasked with determining parenting arrangements for the three children of the parties. The mother sought sole parental responsibility and limited contact with the father, citing serious allegations of family violence and concerns about the father's mental health. The father sought shared parental responsibility and regular contact with the children. The central issue before the court was whether the father posed an unacceptable risk to the children and, if so, what form any contact should take.

The court considered various factors outlined in section 60CC(3) of the Family Law Act, including the children's best interests, the parents' capacity to provide for the children, and the potential impact of family violence. The mother was found to be providing adequate care for the children, with sufficient support services in place. The court also noted the children's loving and warm relationship with their mother and their lack of safety concerns in her care. The father, however, was found to have exhibited intimidating behaviour and threats of self-harm towards the mother when the children were in his care. The court further considered the father's chronic mental health vulnerabilities, although there was no current evidence from any treating medical or allied health practitioner.

The court concluded that the father posed an unacceptable risk to the children, given the history of family violence and his mental health issues. The court decided that the children's best interests would be served by limiting the father's contact to sending cards, letters, and gifts to the children, with any replies to be facilitated by the mother via a designated post office box. The court found that a meaningful relationship with the father would not be in the children's best interests, given the potential harm that such a relationship could cause. The mother was awarded sole parental responsibility, and the children were to live with her. The court also noted that the order for the appointment of the Independent Children's Lawyer was discharged, and all other applications were dismissed.

Orders

Orders of the court

MLC 9403 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR AUDLEY

Applicant

AND:

MS CAYTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

21 AUGUST 2023

THE COURT ORDERS THAT:

Parental responsibility

1. The mother have sole parental responsibility for the children X born 2013, Y born 2016 and Z born 2018.

2. The children live with the mother.

Communication with the children

3. The father is at liberty to send the children cards, letters and gifts to the children via a Post Office Box address supplied by the mother.

4. The mother facilitate any reply the children wish to make via a post office box address supplied by the father.

5. For the purposes of Orders 3 and 4, within 21 days of the making of these orders, and via the Independent Children’s Lawyer:

(a) the mother shall provide the father with a Post Office Box address for the father to communicate with the children; and

(b) the father shall provide the mother with a Post Office Box address for the children to use to communicate with him.

Miscellaneous

6. The order for the appointment of the Independent Children’s Lawyer is discharged 21 days from the making of these orders.

7. All applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The children were all assessed as having a loving and warm relationship with their mother. They did not disclose any concerns or worries for their safety in their mother’s care. Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i); The mother is 28 years old. She is a full time student. She lives with her partner. His teenage daughter resides in the home half of the time. They live in a rented home in an undisclosed location. The mother has struggled with her own mental health issues, including anxiety and depression. She attends upon a general practitioner in relation to her anxiety and depression. She said to the Family Report Writer that she had ceased taking medication with her doctor’s oversight. Dr C diagnosed with the mother with post-traumatic stress disorder, and that she had previously suffered major depressive episodes. The Department of Fairness, Families and Housing have been involved with the family on a number of occasions. They have conducted home visits and have described the home as being above minimal standards, with sufficient food. They have assessed that the children are not at significant or immediate risk of harm in the mother’s care. The reports of X to the Family Report Writer did not identify issues in the mother’s household. X reported warm and positive relationships with her mother, step-father and siblings, described age appropriate chores, and appropriate disciplinary measures. Y’s reports were similar. I am satisfied the mother is providing adequate care for the children, and that she is able to meet their physical and emotional needs. She has supports through L Care Services and has engaged with P Support Services to assist her from time to time as needed. She has also been assisted by Q Support Services when necessary. The mother meets the costs for the children. The mother said the children are regularly attending school, although it is apparent that at least in 2021 and 2022 there were a number of school absences. The mother said that occurred substantially during COVID-19, when various members of the household became ill. She also said school was missed when the children and mother were temporarily relocated with the assistance of Q Support Services in 2021 out of concern about the father’s behaviour and risks to the mother. The mother also said she has delivered X late on a number of occasions in those years as the children were attending separate school and pre-school facilities. The mother acknowledged she initially allowed the children to spend time with their father following the parties’ separation. She said the father behaved in an intimidating manner towards her, and at times threatened self-harm when the children were in his care. She also deposed that the father refused to return the children to her care in July 2020, at which time he physically and verbally abused her.

Ratio Decidendi

Legal Principle Established

Section 60CC(3) of the Family Law Act sets out a raft of additional consideration that I must also take into account in determining the children’s best interests. The Full Court in Bielen at [35] recently conveniently grouped those as follows:·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);·Issues of family violence: ss 60CC(3)(j) and (k);·The likely effect if a child’s circumstances are changed: s 60CC(3)(d); ·Practical difficulty of implementation: s 60CC(3)(e);·Avoiding further proceedings: s 60CC(3)(l); and·Other relevant matters: s 60CC(3)(m).THE PRIMARY CONSIDERATIONSWill the children benefit from having a meaningful relationship with the father? The Family Law Act does not define the word “meaningful”. However, it has been held to be synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518. For it to be meaningful, the relationship has to be “healthy, worthwhile and advantageous” to the child; per Cronin J in Loddington & Derringford (No 2) [2008] FamCA 925. This is a prospective enquiry – and my focus is upon whether the children having a meaningful relationship with their father will be to their advantage in the future; McCall and Clark (2009) FLC 93-405 at [117]. In most cases there will be a positive benefit to the children having both parents involved in their lives. However, the Full Court has observed that in some cases orders to attempt to foster a relationship with one parent will be of no positive benefit to a child, and that to make such orders would not be in the child’s best interests: McCall & Clark (2009) FLC 93-405 [122]. As observed by Nygh J in Cotton & Cotton (1983) FLC 91-330, it is generally desirable for a child to maintain a meaningful relationship with both parents. However, as his Honour stated at 78,252:…that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist. As identified by the Family Report Writer, the possible benefits to the children in this matter in having a meaningful relationship with their father include understanding their identity, assisting with self-esteem and contributing to their self-image.