Bradshaw & Bradshaw (No 2)

Case [2023] FedCFamC1F 430

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bradshaw & Bradshaw (No 2) [2023] FedCFamC1F 430

File number(s): NCC 535 of 2022
Judgment of: AUSTIN J
Date of judgment: 26 May 2023
Catchwords: FAMILY LAW – PARENTING – Where both parties seek sole parental responsibility and the child’s residence – Where the child currently lives with the father and refuses any interaction with the mother – Where the mother and Independent Children’s Lawyer allege the father causes the child to suffer serious psychological harm by failing to ensure the child enjoys a relationship with the mother – Where the single expert reported there would be ongoing and lasting consequences for the child’s future social and psychological development if his alignment with the father is not rectified – Where the single expert evidence is accepted – Where it is found the father has engaged, and is engaging, in child abuse and the child requires protection from the risk of serious psychological harm in the father’s care – Where the child has demonstrated the capacity to flee the mother but can be viably moved to live with the mother – Where the presumption of equal shared parental responsibility does not apply – Ordered the mother have sole parental responsibility – Father restrained from any form of contact with the child for three months – Ordered the child live with the mother and spend defined time with the father  
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 68B, 68C, 69ZQ, 69ZX
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Division: Division 1 First Instance
Number of paragraphs: 105
Date of hearing: 15, 16 & 17 May 2023
Place: Newcastle
Counsel for the Applicant: Mr Duane
Solicitor for the Applicant: Gillard Family Lawyers
Counsel for the Respondent: Mr Lawrence
Solicitor for the Respondent: Powe & White Lawyers
Counsel for the Independent Children's Lawyer: Mr Mooney
Solicitor for the Independent Children's Lawyer: Krstina Wooi Lawyer

ORDERS

NCC 535 of 2022

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

MS BRADSHAW

Applicant
AND:

MR BRADSHAW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

26 may 2023

THE COURT ORDERS THAT:

1.All former orders relating to the child X, born 2010, are discharged.

2.The mother shall have sole parental responsibility for the child.

3.The child shall live with the mother.

4.For three months from the date of these orders, for the personal protection of the child and the mother, the father is restrained from:

(a)communicating in any way with the child, either by initiating communication with or responding to communication initiated by the child, and from causing a third party to…

Continue reading Bradshaw & Bradshaw (No 2)

Sign in free to access the full text

Details
AGLC
Bradshaw & Bradshaw (No 2) [2023] FedCFamC1F 430
Case
[2023] FedCFamC1F 430
Decision Date

CaseChat Overview and Summary

The matter before the Court involves the dispute between Bradshaw and Bradshaw regarding the care and custody of their 12-year-old child. The dispute arose following the separation of the parties in February 2022, after the father discovered the mother's extra-marital affair. The mother filed proceedings in March 2022, seeking orders for the child to live with her and for tightly controlled interaction with the father. The primary legal issues were whether the child's best interests would be served by an order allocating equal shared parental responsibility to the parties and whether the child should primarily reside with the mother, with defined time to be spent with the father.

The Court concluded that the father's engagement in child abuse negated the presumption of equal shared parental responsibility. Even if the presumption applied, it would be rebutted by the evidence indicating that equal shared parental responsibility would not serve the child's best interests. The Court found that the parties had a very poor co-parenting relationship, with little to no communication between them. The child should immediately transition to living with the mother due to the father's emotionally abusive conduct, his lack of capacity to meet the child's emotional needs, and the mother's ability to provide more adult support for the child. The Court's discretion regarding the child's care arrangements was at large, exercised in the context of the child's best interests being the paramount consideration.

The Court made orders for the child to immediately live with the mother and for defined time to be spent with the father. The orders also provided for sole parental responsibility to be allocated to the residential parent, the mother, and mandated family therapy for the child and both parents. The father was also ordered to pay the mother's legal costs up to a specified amount.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These reason explain why orders should provide for the child to live with the mother and tightly control his interaction with the father.BACKGROUND The parties married in 2004 and the child was born in 2010. He is currently aged 12 years. The parties separated in February 2022 after the father discovered the mother’s extra-marital affair, resulting in her leaving the family home alone with few belongings early the next morning. The circumstances under which that occurred were contentious, but it is not necessary to make any findings to resolve that factual dispute because, regardless, both parties’ passions were inflamed and the child remained living with the father. Thereafter, the mother had very little contact with the child so she commenced these proceedings only a few weeks later in March 2022. In April 2022, interim orders were made for the parties to equally share parental responsibility for the child. The orders made provision for the child to spend time with the mother, beginning with a short period of introductory contact, followed by several months of substantial and significant time on weekends and on Wednesday afternoons. However, by the last school term of 2022, the child was to live with the parties for equal time in weekly rotations. The parties were also ordered to engage in family therapy with the child, for which purpose more orders were later made in July 2022 for the Independent Children’s Lawyer (“ICL”) to nominate a specific therapist. The April 2022 orders were breached. The father told the mother of his intention to flout the orders very soon after they were made.[1] As the father foreshadowed, the child did not spend time or live with the mother at the times required by the orders and, whenever he did spend time with her, changeovers were tense affairs. The father contended the child unilaterally resisted any association with the mother, but she contended the child was only reacting to pressure exerted by the father to reject her. The child has not spent any meaningful time with the mother since May 2022,[2] around only a month after the interim orders were made.[1] Mother’s affidavit at [32][2] Family Report at [12] The father continued to take the child to McDonalds on Wednesday afternoons to meet the mother, but the child’s resistance did not dissolve and he only deigned to stay with her for short periods – the mother said no more than 45 minutes and often much less. The father conceded the child never once stayed with the mother for as long as he should have done under the orders. Eventually, the mother stopped going,[3] but the father still took the child to McDonalds each Wednesday despite him saying in cross-examination the child “doesn’t want to be there”. The father contends he kept taking the child to McDonalds in an attempt to foster his relationship with the mother, but she suspects it was only a ruse to try and impart the impression of the father’s honest intentions. The father always hovered in close proximity at the restaurant, so the mother and child had no effective reprieve from his supervision. The father said he did so for the child’s security, but that seems an unlikely reason because the child was in no physical or emotional danger in the mother’s company, particularly when at a public venue. The father asserted his specific worry about the child being knocked by a vehicle on the nearby road if he absconded from the mother and he was not present to protect him but, objectively discerned, that risk was an exaggeration.[3] Mother’s affidavit at [43]

Evidence

Evidence Before The Court

The ICL began the trial by foreshadowing an intention to propose orders generally in line with those proposed by the mother, but did not tender any minute of proposed orders until final submissions.[24] By that time, the ICL’s proposal was almost identical to that of the mother.[24] Exhibit ICL8EVIDENCE The mother relied upon the affidavits filed by her and Mr H on 1 May 2023. The parties disputed whether Mr H’s cross-examination should occur by audio-visual internet link or by telephone. The father contended it should be the former, because Mr H’s credibility would be at stake and it would be advantageous to observe his demeanour under pressure, notwithstanding the father conceded the existence of authority for the proposition that credit findings based on observations of witnesses are far from infallible (Fox v Percy (2003) 214 CLR 118 at [128–132], [146–148], [163] and [165]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [607]–[608] and [617]–[621]). The cross-examination was instead conducted by telephone, for which decision there was express power (ss 69ZQ(1)(e) and 69ZX(1)(c) of the Act). Mr H was a reluctant witness against the father and had to be served with a subpoena to give evidence. On the first day of trial, in the face of his asserted resistance to appearance as a witness, the need to issue an arrest warrant was firming as a possibility. He lived some distance from the Court and it was much more convenient for him to be cross-examined electronically. The evidence he gave fell within a relatively narrow factual compass and he claimed not to have ready access to a computer equipped with a camera. As it transpired, the portended challenge to his credibility all but fell away. He was only challenged by the father’s counsel on a few facts about past conversations, even though the father’s own recollection of those facts and conversations proved to be poor. The cross-examination petered out with Mr H being pointlessly asked to affirm portions of his affidavit. The father relied upon his affidavit filed on 1 May 2023. The parties and the ICL relied upon the Family Report prepared by the single expert sociologist (“the single expert”) on 7 December 2022.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

Decision

Reasons for decision

In any event, there is a heightened chance of more litigation in the nature of enforcement or contravention proceedings if the child’s residence is reversed and he absconds. The father’s proposal is much less likely to engender further litigation.CONCLUSION As already mentioned, whenever parenting orders are sought and made, the Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA(1)), though the presumption either does not apply or is rebutted in certain circumstances. The presumption does not apply due to the finding that the father has engaged and is engaging in child abuse (s 61DA(2)). Even if the presumption did apply, it would be easily rebutted by the evidence showing the child’s interests would not be advanced by the parties having equal shared parental responsibility for him (s 61DA(4)). Obvious examples of their inability to exercise equal shared parental responsibility are their failure to faithfully implement interim parenting orders, both as to the child’s interaction with the mother and his school enrolment. The single expert said the parties had a “very poor co-parenting relationship with little to no communication between them”, which motivated her to recommend against them having equal shared parental responsibility.[81] That was not controversial because both parties and the ICL applied for an order granting sole parental responsibility to the residential parent, which was ironically one of the few things upon which they could agree. The residential parent will have sole parental responsibility.[81] Family Report at [39], [40], [130] and [131] Given there will be no order for equal shared parental responsibility, the orders regulating the child’s residential care are not constrained by s 65DAA of the Act. Discretion in that regard is at large. The single expert foresaw two stark options for the child: either he lives with the father and has no relationship with the mother, or alternatively, he lives with the mother and spends defined time with the father.[82] Neither the parties nor the ICL submitted there was any other option.[82] Family Report at [123] The single expert did not say so in her report, but in cross-examination she recommended the child’s immediate transition to live with the mother. She confirmed the view she expressed in her report that any delay will tend to hinder the success of the transition.[83][83] Family Report at [126] The child should immediately move to live with the mother. In summary, the reasons for that decision are:(a)he cannot derive benefit from meaningful relationships with both parents whilst ever he lives with the father (s 60CC(2)(a));(b)he needs protection from the psychological harm he experiences by subjection or exposure to the father’s emotionally abusive conduct (s 60CC(2)(b));(c)the father does not have the capacity to meet the child’s emotional needs (s 60CC(3)(f)) and displays a poor attitude to the responsibilities of parenthood (s 60CC(3)(i)); and(d)the child will likely have more adult supports if living with the mother (s 60CC(3)(b)).

Ratio Decidendi

Legal Principle Established

In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) Despite the mother’s frustration with what she perceives to be the father’s antagonism, she still believes the child would derive benefit from maintaining his relationship with the father.[25] She is correct to think so because the single expert observed a “close and connected relationship” between them.[26][25] Family Report at [29]; Mother’s affidavit at [17][26] Family Report at [109] Conversely, the father believes the child would not derive any benefit at all from maintaining a relationship with the mother and, moreover, would be completely unaffected by having no relationship with her at all.[27] He prevaricated somewhat about the harshness of that position during cross-examination, but his views appeared to remain largely unchanged. When asked about the importance of the child’s relationship with the mother, the father said it was only important so the child could have “someone else to go to if something happens to [him]”. He could not think of any other reason it was important, despite pausing to consider it at length. He was asked if he thought the child once loved the mother and he responded “I can’t speak for [the child]”.[27] Family Report at [37] Such confounding views seemingly stem from, at least in part, the father’s ingrained belief that the mother is sexually promiscuous, lacks intelligence, frequently lies, and is seeking financial relief against him to which she is not entitled.[28] He told the single expert he would not promote the mother to the child as a “nice person”.[29] His denial during cross-examination of having made the last comment to the single expert is rejected, particularly since the single expert quoted the father’s comment from contemporaneous notes and he answered many questions posed to him in cross-examination about past conversations and events by saying he had no recollection.[28] Family Report at [45], [48], [50], [55], [57] and [114][29] Family Report at [70] The parties have quite different perceptions about the quality of the child’s relationship with the mother before the marital separation in February 2022. The mother believes her relationship with the child was close and loving, just like the child’s relationship with the father,[30] but the father apparently believes that was only the case until a few years ago, before it then deteriorated.[31] The father’s opinion evidence is rejected. For reasons yet to be explored, his opinions and beliefs about the child and the mother are found to be seriously flawed and unreliable. Until separation, the mother was the child’s primary carer, as the father devoted much of his time to work and business interests. Most probably, the child enjoyed a warm, loving and meaningful relationship with the mother – at least until the parties separated and the child remained in the father’s primary care, susceptible to the full force of his adverse views about the mother.[30] Family Report at [26]; Mother’s affidavit at [7] and [9][31] Father’s affidavit at [11]–[21]