FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bishop & Bishop [2023] FedCFamC1F 250
File number(s): SYC 7182 of 2014 Judgment of: ALTOBELLI J Date of judgment: 11 April 2023 Catchwords: FAMILY LAW – PARENTING – Where there is a history of family violence – Where the father has mental health issues and previous alcohol and substance abuse issues – Where the father continues to use coercive and controlling behaviours – Where the single joint expert recommends the children resume spending time with the father – Where the father’s proposal cannot be successfully implemented –
Finding of unacceptable risk to the children – Orders made for the children to live with the mother and spend no time with the father except at the reasonable request of the children – Monthly communication through letters, cards, gifts and photographs allowed.Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68B Cases cited: Carter & Wilson [2023] FedCFamC1A 9
F v M [2021] EWFC 4
Hartley & Hartley [2021] FedCFamC1F 178
Helbig & Rowe and Ors [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 1 First Instance Number of paragraphs: 125 Date of last submission/s: 15 December 2022 Date of hearing: 31 October–3 November 2022 Place: Sydney Solicitor for the Applicant: Reid Family Lawyers Counsel for the Respondent: Ms Spain Solicitor for the Respondent: KP Lawyers & Barristers Counsel for the Independent Children's Lawyer: Mr Anderson Solicitor for the Independent Children's Lawyer: Robertson Solicitors ORDERS
SYC 7182 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BISHOP
Applicant
AND: MR BISHOP
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
11 April 2023
THE COURT ORDERS THAT:
1.All previous parenting orders with respect to the children, X born 2009 and Y born 2012 (“the children”) are discharged.
Parental Responsibility
2.The Applicant mother shall have sole parental responsibility for major decisions affecting the long-term care, welfare and development of the children subject to Orders 3 to 6 herein.
3.Notwithstanding the terms of Order 2 the Respondent father is authorised by these orders to obtain from any school(s) that the children may attend information about their progress and welfare, including:
(a)Copies of school reports, awards, and information about the children's academic achievements; and
(b)School photograph order forms so that the father can order a copy of the children’s annual school photographs.
4.The mother shall promptly notify the father:
(a)In the event of any change of the children's schools, including details of their new schools;
(b)If the children’s place of residence is changed from B Street, Suburb D; and
(c)About any significant medical issues which affect the children or either of them.
5.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”), the mother is permitted to cause the children or either…
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CaseChat Overview and Summary
This case involves the mother and father of two children, X and Y, who are seeking directions concerning the children’s residence and time arrangements. The Court was required to decide whether there was a risk to the children in spending time and communicating with the father, and if so, what the nature of that risk was and how, if at all, it could be managed. The Court was also required to consider the views of the children, particularly X who seems to have completely rejected his father. The Court further had to consider the father’s capacity to provide for the needs of the children, particularly their emotional needs, given the family violence that he perpetrated. Finally, the Court had to assess the levels of insight, and the attitudes of both parents in the context of the factual matrix of this case.
In making its decision, the Court found that the children were exposed to and experienced family violence perpetrated by the father. The Court was satisfied that the father's history of family violence, particularly in the context of his substance abuse, presented a significant risk to the children. The Court also found that the father lacked insight into the impact of his behaviour on the children and was unable to demonstrate that he could provide for the children's emotional needs. The Court found that the mother was a loving and caring parent who had provided the children with a stable and nurturing environment. The Court also found that the children, particularly X, had a strong desire not to spend time with the father. The Court concluded that it was in the best interests of the children to live with the mother and to have no contact with the father, other than to communicate with him by letter once a year on his birthday. The Court made orders to this effect.
In making its decision, the Court found that the children were exposed to and experienced family violence perpetrated by the father. The Court was satisfied that the father's history of family violence, particularly in the context of his substance abuse, presented a significant risk to the children. The Court also found that the father lacked insight into the impact of his behaviour on the children and was unable to demonstrate that he could provide for the children's emotional needs. The Court found that the mother was a loving and caring parent who had provided the children with a stable and nurturing environment. The Court also found that the children, particularly X, had a strong desire not to spend time with the father. The Court concluded that it was in the best interests of the children to live with the mother and to have no contact with the father, other than to communicate with him by letter once a year on his birthday. The Court made orders to this effect.
Orders
Orders of the court
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Background
Background to the litigation
This case is about two children, X, who is 13, and Y, who is 10 (“the children”). These reasons for judgment explain the orders that the Court has made for the children to live with their mother and spend no time but communicate with their father. This is a sad case that demonstrates once again that family violence has profound, long-lasting impacts on all parties: the victim, the children and the perpetrator. Family violence casts a giant shadow over all that follows afterwards.BACKGROUND The applicant in this case is the children's mother (“the mother”). She is 49 years old, and is in casual and part-time paid employment, including working five days per week in office administration, and working as an allied health worker. She lives with the children in Sydney. The respondent is the children's father (“the father”). He is 46 years old and describes himself as self-employed. He too lives in Sydney. The parents married in 2008 and separated in May 2014. The mother described a marriage that was characterised by physical and verbal violence by the father towards her. In her affidavit, she referred to the regular explosive outbursts directed towards her, witnessed by the children. Disturbingly, the family violence appears to have increased significantly after separation. For example, in June 2014, the month after they separated, the father assaulted the mother as she drove him to C Hospital, where he was undertaking rehabilitation for substance abuse issues. He was charged by New South Wales Police (“NSW Police”) with common assault. In mid-2014, a final Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother and the children. When the father's criminal matter came before the Local Court in late 2014, the father pleaded guilty to the common assault charge. He was convicted and sentenced, being placed on a good behaviour bond and ordered to complete the Magistrates Early Referral into Treatment Program. The father makes no mention of this in his affidavit. The first set of proceedings in the Family Court of Australia commenced on 17 November 2014 and concluded on 2 May 2018, when a registrar made orders by consent. By way of background in these first proceedings a single expert report was prepared by Professor G, dated 18 April 2017. That report was also in evidence before the Court in the present proceedings. The proceedings between the parties were settled on the following basis: the children were to live with the mother and spend time with the father on alternate weekends and holidays and special occasions; the mother was to have sole parental responsibility regarding the children’s health and education; the children were to attend a primary school and then a high school in the Local Government area; the mother was to contact the father in writing to obtain and consider the father’s views about any decision regarding the children’s long-term health or education; the parents were to have equal shared parental responsibility regarding decisions affecting the children’s names and residential arrangements which would make it more difficult for them to spend time with him; and the father was to undergo hair follicle testing.
Evidence
Evidence Before The Court
The Court was thus called upon to decide issues relating to parental responsibility and whether, and if so on what terms, the children spend time and communicate with the father. In order to adjudicate these issues, the Court had to assess whether there was a risk to the children in spending time and communicating with the father, and if so, what the nature of that risk was and how, if at all, it could be managed. There is an issue about the weight that should be given to the views expressed by the children, particularly X, who seems to have completely rejected his father. There is a significant issue about the father's capacity to provide for the needs of the children, particularly their emotional needs, given the family violence that he perpetrated, which the Court is satisfied the children were exposed to and experienced. There are questions about the levels of insight, and the attitudes of both parents in the context of the factual matrix of this case. Where there are other issues, these will be discussed.THE EVIDENCE BEFORE THE COURT In support of her case, the mother relied on the following documents:(a)Amended Initiating Application filed on 24 October 2022;(b)Her affidavit filed on 14 October 2022;(c)Affidavit of Ms E, Psychologist, filed on 26 October 2022; and(d)Documents tendered and marked as Exhibits A1–A13 on 9 November 2022. In support of his case, the father relied on the following documents:(a)Amended Response to Initiating Application filed on 24 October 2022;(b)His affidavit filed on 14 October 2022;(c)Affidavit of Dr J filed on 5 September 2022; and(d)Documents tendered and marked as Exhibits R1–R5 on 3 and 4 November 2022. In support of their case, the Independent Children’s Lawyer relied on the following documents:(a)The applicant’s Notice of Risk filed on 10 March 2020;(b)The Single Expert Report of Ms H dated 5 March 2021;(c)The Update Single Expert Report of Ms H dated 19 October 2022; and(d)Documents tendered and marked as Exhibits ICL1–ICL7 on 10 November 2022. The witnesses who were called to give evidence included:(a)The mother;(b)The father; (c)Ms E;(d)Dr J; and(e)Ms H.THE APPLICABLE LAW The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1)The objects of this Part are to ensure that the best interests of children are met by:(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d)parents should agree about the future parenting of their children; and(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a)to maintain a connection with that culture; and(b)to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii)to develop a positive appreciation of that culture.(Emphasis in original)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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