Babayev & Babayev

Case [2024] FedCFamC1F 589

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Babayev & Babayev [2024] FedCFamC1F 589

File number(s): MLC 6573 of 2019
Judgment of: WILLIAMS J
Date of judgment: 4 September 2024
Catchwords: FAMILY LAW – PARENTING – Where the child suffered serious injuries when he was an infant that were medically assessed as non-accidental injuries – Both parents deny causing the injuries to the child – Where the father was convicted at first instance of causing injury to the child and later acquitted on appeal – Where the mother fears the child will sustain serious harm in the fathers care – Where the mother asserts the father poses an unacceptable risk of psychological harm to the child – Mother suffers a medical condition typically due to stress – Where the decompensation of the mothers mental health has manifested in physical symptoms which has required hospitalisation and ongoing management by a specialist – Consideration of the weight to be given to the mothers beliefs and the impact on her if the child were to spend supervised or unsupervised time with the father –Re Andrew principles – Finding that the mothers beliefs are genuinely held – Finding that the mothers parental capacity will be discernibly impaired due to her genuinely held belief that the father poses a risk to the child – Sole parental responsibility vested in the mother – Orders made for the child to spend identity time with the father
Legislation:

Evidence Act 1995 (Cth) s 140

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

Family Law Amendment Act 2023 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.05

Cases cited:

A & A (1998) FLC 92-800; [1998] FamCA 25

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bayer & Imhoff [2010] FamCA 532

Blinko & Blinko [2015] FamCAFC 146

Dunst & Dunst [2016] FamCAFC 15

Fitzwater & Fitzwater [2019] FamCAFC 251

Grant & Grant (1994) FLC 92-506

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Mazorski v Albright (2007) Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Re Andrew (1996) FLC 92-692

Sedgley & Sedgley (1995) FLC 92-623

Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 264
Date of hearing: 21-24 August 2023, 25 September 2023, 8-12 April 2024 and 1-2 August 2024
Place: Melbourne
Counsel for the Applicant: Ms Mallett KC
Solicitor for the Applicant: Harwood Andrews Lawyers
Counsel for the Respondent: Mr Whitchurch
Solicitor for the Respondent: Duane Portway Family Law
Counsel for the Independent Children's Lawyer: Mr Allen
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 6573 of 2019

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

MS BABAYEV

Applicant
AND:

MR BABAYEV

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

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AGLC
Babayev & Babayev [2024] FedCFamC1F 589
Case
[2024] FedCFamC1F 589
Decision Date

CaseChat Overview and Summary

The matter before the court involved the parents of a child, born in 2018, who had sustained serious injuries while an infant. Both parents deny causing the injuries. The father was initially convicted of causing injury to the child but was later acquitted on appeal. The mother sought sole parental responsibility for the child, asserting that the father poses an unacceptable risk of psychological harm to the child and that she fears the child will sustain serious harm if he spends time with the father. The mother also suffers from a medical condition, typically due to stress, which has required hospitalisation and ongoing management by a specialist. The father sought equal shared parental responsibility and unsupervised time with the child.

The legal issues the court had to decide included whether there should be an order for sole parental responsibility vested in the mother, whether the child was at an unacceptable risk of psychological harm if he spent time with the father, whether the risk of harm could be ameliorated, and what time, if any, the child should spend with the father. The court had to consider the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

The court found that the mother's beliefs were genuinely held and that her parental capacity would be discernibly impaired due to her belief that the father posed a risk to the child. The court considered the impact on the mother if the child were to spend supervised or unsupervised time with the father and found that the risk of harm could not be ameliorated. The court also considered the impact of the father’s acquittal on appeal on the mother's belief and found it to be minimal. The court concluded that it was in the child's best interests for the mother to have sole parental responsibility and for the child to spend identity time with the father under supervision.

The court made orders vesting sole parental responsibility in the mother, with specific provisions regarding the child's education, health and wellbeing, and the time the child would spend with the father. The father was to provide the mother with his contact details, and the mother was to provide the father with hers. The parents were to communicate via email, unless in an emergency. The mother was permitted to leave Australia with the child for holidays, provided she gave the father six weeks' notice. All previous parenting orders were discharged.

Orders

Orders of the court

MLC 6573 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BABAYEV

Applicant

AND:

MR BABAYEV

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

4 SEPTEMBER 2024

THE COURT ORDERS THAT:

Parental responsibility

1. The mother have sole parental responsibility for the child, X born 2018 (“X”), provided that:

(a) With regard to X’s education:

(i) The mother inform the father about X’s intended schooling prior to enrolling the child (or carrying forward any current enrolment) at any school at which it is intended the child will attend; and

(ii) The father is at liberty to provide any comment to the mother for a period of seven (7) days from the date of notification, following which the mother will be at liberty to complete the enrolment of X at the said school; and

(b) With regard to X’s health and wellbeing:

(i) The mother provide to the father information about any significant development with regard to X’s health and wellbeing; and

Lives with

2. X live with the mother.

Spend time

3. X spend time with the father, supervised, on four (4) occasions each calendar year, for a period up to three (3) hours duration on a Sunday in each of April, July, October and December with the time spent to coincide generally with school holiday periods and with the date to be agreed between the parents in writing, and in the absence of agreement the date to be nominated by the mother.

4. For the purposes of all time spent by X with the father, the following provisions shall apply:

(a) time spent shall be supervised by a professional supervisor at the father’s sole expense;

(b) time spent shall take place at either an approved supervised contact centre or an agreed community setting, or at such other venue as may be agreed by the parents in writing in advance; and

(c) changeover shall take place at the supervised contact centre or at such venue as is agreed in writing between the mother and the supervisor.

5. In the event that X suffers any injury or illness during the father’s time spent, the father and the supervisor will:

(a) in the event that X is distressed or injured to the point of needing to cease the activity and be comforted, immediately notify the mother, provide clear and full information as to the circumstances and in the event that the mother requests that time cease, return X to the care of the mother immediately; and/or

(b) in the event of any more minor injury provide the mother with details of the circumstances at the time of changeover.

Other

6. The father shall provide to the mother in writing particulars of his telephone number and a designated email address for the purposes of receiving information about X from the mother and for the purposes of communication pursuant to these orders.

7. The mother shall provide to the father in writing particulars of her telephone number and a designated email address for the purposes of providing information about X to the father and for the purposes of communication pursuant to these orders.

8. The parents shall communicate concerning X via email, unless in an emergency, and in the event of an emergency during supervised time, the supervisor shall contact the mother by telephone.

9. The parents do all acts and things and sign all such documents as may be necessary to enable the mother to obtain an Australian passport to be issued to X.

10. The mother be permitted to leave the Commonwealth of Australia with X for holidays, provided that if the mother intends to take X on an overseas holiday, she will provide the father with no less than six (6) weeks written notice of her intention to travel and the dates of the proposed travel.

11. Any passport obtained on behalf of X shall be held by the mother.

12. All previous parenting orders are discharged.

13. The Application of the mother and the Response of the father are otherwise dismissed.

14. The Independent Children’s Lawyer is hereby discharged.

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).

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

Background

Background to the litigation

The following issues required determination:(1)Should there be an order for sole parental responsibility vested in the mother, as sought by her, or should there be an order for equal shared parental responsibility, as sought by the father;(2)Is the child at an unacceptable risk of psychological harm if he spends time with the father, because of the discernible impact on the mother’s parenting capacity;(3)If so, is it possible to ameliorate the risk of harm; and(4)What time, if any, should the child spend with the father.BACKGROUND The parties commenced a relationship in 2011, commenced cohabitation in 2013, and married in 2017. Their child, X, was born in 2018. They separated on a final basis in March 2019, and divorced in 2021. In 2018 when the child was an infant, his parents took him to the B Hospital emergency department because he appeared critically unwell. He was x-rayed and shortly thereafter the child was transferred by ambulance with the mother, and admitted to C Hospital, where he stayed overnight. It was found that the child had sustained a serious injury. The mother was informed by staff at C Hospital that police and child protection had been notified. The next day, the mother and father were interviewed separately by the police and DHHS about the child’s injuries. According to the mother, she told the police and DHHS that she had no idea how the child had been injured and was told the child had to stay in hospital over the weekend for further tests. On the following day the mother was contacted by a paediatrician, Dr D, who told her that in addition to the first injury, X had further serious injuries. She was subsequently told the further injuries were likely to have occurred earlier in the month. A few days later, the Department of Health and Human Services (“DHHS”) assessed the father as responsible for harming the child and filed an urgent Protection Application at the City F Children’s Court. On the following day, the City F Children’s Court made an Interim Accommodation Order for the child to be placed in the mother’s care in the maternal family home, and for the father to have supervised visits for one hour on three occasions each week, to take place at the home of the maternal aunt, Ms E. The Interim Accommodation order was varied by the Children’s Court in early 2019, and again two weeks later. In early 2019, DHHS prepared a confidential Court Report which detailed X’s injuries. The injuries were described as “purple non-blanching marks […], swelling and tenderness […] and […] fractures”. The report also stated that in 2018, the father admitted to DHHS that one of the injuries may have been caused by him yanking the child with force a few days earlier, after becoming frustrated the child would not settle. The mother deposes to the father behaving in an intimidating and threatening manner towards her during the Children’s Court proceedings, and in particular an episode which occurred at the Children’s Court in early 2019 when the father had to be removed by security. The father denies this occurred.

Evidence

Evidence Before The Court

The final hearing in this matter commenced prior to the commencement of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore do not apply to this case, and the consideration of best interest factors reflect the relevant legislation as at the commencement of final hearing. Evidence The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)). Section 140 of the Evidence Act 1995 (Cth) provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject- matter of the proceeding; and(c) the gravity of the matters alleged. The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the dispute. I have examined that evidence and do not propose to repeat it in these reasons. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said: …A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.The legal principles applicable to parenting disputes Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to the primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I will now turn to the statutory considerations and will firstly address the primary considerations.Primary considerationsThe benefit to the child of having a meaningful relationship with both of the child’s parents Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”. In Mazorski v Albright [2007] FamCA 520, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”. In McCall & Clark, the Full Court considered the meaning of s 60CC(2)(a) and said:[119]… the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ... [122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests. There is no dispute the mother will continue her role as primary carer of the child, and the child will accordingly continue to enjoy a meaningful relationship with his mother. Dr M was unequivocal the child enjoyed an excellent relationship with his father, which was beneficial to him. The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse The mother remains steadfast in her belief that the father caused the child’s injuries, and the father believes the mother is responsible, although he does not seek a change of residence and does not assert the mother poses a risk of harm to the child. The father denies he poses any risk to the child and seeks orders for time with the child to gradually increase, culminating in overnight unsupervised time. The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97. The Full Court adopted as correct, the statement of law in Austin J’s dissenting judgement in Fitzwater & Fitzwater [2019] FamCAFC 251 at [138]:The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before….