Callas & Gordon (No 2)

Case [2022] FedCFamC1F 10

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Callas & Gordon (No 2) [2022] FedCFamC1F 10

File number(s): MLC 3486 of 2017
Judgment of: MCGUIRE J
Date of judgment: 1 February 2022
Catchwords:

FAMILY LAW – CHILDREN - Application by father to set aside parenting orders made by consent in May 2018 – Where existing orders provide for the father to spend time with the child for five nights per fortnight – Where the father seeks an order for sole parental responsibility – Where the father seeks orders that child live with him – Whether there has been sufficient change in circumstances – Consideration of child’s best interests – Capacity of parents – Child’s views – Antagonistic relationship between parents - Order for equal time

FAMILY LAW – PROPERTY – Application by the wife pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) for an order setting aside property orders made by consent in this Court on 19 April 2018 – Application opposed by the husband – Consideration of relevant principles Application dismissed

FAMILY LAW – SPOUSAL MAINTENANCE – Application brought by wife for spousal maintenance –  Application opposed by the husband - Where it was found that the wife failed to satisfy the onus of proof in respect of her claim – Wife shows prima facie need but does not explain disposal of significant lump sum from property settlement – Wife gives no evidence as to any effort to mitigate her circumstances - Application dismissed  
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CC(2), (3) 72, 74 and 79A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at Division 6.2.1

Cases cited:

Badawi & Badawi (2017) FLC 93-784

Barker & Barker (2007) Fam LR 36

Clifton & Stuart (1991) 92-194.

Granada Tavern v Smith [2008] FCA 646

Holland & Holland (1982) FLC 91-243

Lane & Lane (2016) FLC 93-699

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92

Molier & Van Wyk (1980) FLC 90-911

Mullane v Mullane (1983) 158 CLR 436

Oastler & Oastler (1993) 92-390

Re F: Litigants in Person Guidelines (2001) FLC 93-072

Rice & Asplund (1979) FLC 90-725

Suiker & Suiker (1993) FLC 92-436

Thorne & Kennedy [2017] HCA 49
Division: Division 1 First Instance
Number of paragraphs: 232
Date of hearing: 21, 22 and 23 December 2020; 10, 11, 12 and 13 May 2021; 14 and 15 July 2021; 23 and 24 August 2021; 13 and 20 October 2021
Place: Hobart
Counsel for the Applicant: Mr Teserioro
Solicitor for the Applicant: Sayer Jones Lawyers
Counsel for the Respondent: In person
Counsel for the Independent Children's Lawyer: Mr Goddard
Solicitor for the Independent Children's Lawyer: McCormack and Co

ORDERS

MLC 3486 of 2017

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

MR CALLAS

Applicant
AND:

MS GORDON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

1 FEBRUARY 2022

THE COURT ORDERS THAT:

PARENTING

1.That all previous parenting…

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AGLC
Callas & Gordon (No 2) [2022] FedCFamC1F 10
Case
[2022] FedCFamC1F 10
Decision Date

CaseChat Overview and Summary

In the case of Callas & Gordon (No 2), the parties were involved in complex and contentious parenting proceedings relating to their child, X. The parents had separated and were in dispute over various aspects of X's upbringing, including allegations of sexual abuse and emotional abuse by the father, which the mother had raised with authorities. The father sought changes to the existing parenting arrangements, while the mother opposed these changes. The legal issues before the court included determining the best interests of the child, the impact of any changes in the child's circumstances, and the capacity of each parent to provide for the child's needs.

The court considered the evidence presented by both parties and expert witnesses, including psychological evaluations of X. The mother's volatile and emotional personality contrasted with the father's calm and considered demeanor. Despite the parents' mutual suspicion and conflict, the court found that X had established meaningful relationships with both parents. The court emphasised that litigation was contrary to the child's best interests and encouraged the parents to resolve disputes through negotiation and cooperation. The court acknowledged the father's concerns about the mother's propensity to make unilateral decisions but recognised the parents' newfound insight into the importance of shielding X from their conflict.

The court weighed various factors under section 60CC of the relevant legislation, including the likely effect of changes in X's circumstances, the practical difficulties of maintaining contact with each parent, and the capacity of each parent to meet X's needs. The court found that while both parents had shortcomings, X's emotional well-being would be compromised if she spent significant time away from her mother. The father's proximity to the mother and X facilitated easy movement between their homes. Ultimately, the court made orders that aimed to balance the needs and rights of both parents while prioritising X's best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The above Orders sought by the ICL are transcribed in painful detail into these Reasons as they each necessarily address and demonstrate the plethora of issues and difficulties manifested by these two parents in these proceedings.RELEVANT BACKGROUND The father is 45 years of age. The mother is 37 years. The parties commenced cohabitation in 2009 and were married in 2010. They separated in February 2017 and were divorced in June 2020. X is the only child of the relationship and of each of the parties. The mother is of Queensland aboriginal heritage. On 19 May 2014 the parties together commenced a business “MM Pty Ltd” to primarily provide education services. The father has relevant qualifications. In December 2017 the mother and X relocated from Suburb DD to Suburb G when the mother obtained employment with a government department at Suburb H. X commenced prep at the R School in February 2018 and has essentially remained at that school since. On 19 April 2018 final property settlement orders were made by consent in the Federal Circuit Court at Melbourne. On 14 May 2018 final parenting orders were made by consent in the Federal Circuit Court at Melbourne. In May 2018 the father relocated from Suburb DD to Suburb YY to be closer to X. On 11 July 2018 the father applied for an Intervention Order (‘IVO’) against the mother alleging that she had sent abusive text messages to him. The father asserts that the mother has accused him of sexually abusing X with DHHS becoming involved. The father asserts that X’s first term 2018 school report shows her missing nine complete days and six partial days of school. The father says the mother made allegations against him of sexual abuse of X throughout 2018. The mother did not stop the father's time with X. On 13 August 2018 the father's partner, Ms V, applied for an IVO against the mother alleging harassment at her work place. Ms V was X's sports coach. On 23 August 2018 the father initiated further parenting proceedings in the Federal Circuit Court. The mother applied for an IVO against the father naming herself and X as protected persons. The father says that X’s term two 2018 school report shows her missing twelve whole days and seven partial days of school. In January 2019 the mother unilaterally relocated from Suburb G to N Town with X being a distance of approximately 140 km. The father brought an urgent Application in a Case seeking the return of X and orders were made in those terms on 6 February 2019. The mother returned with X. On 8 February 2019 a final IVO was made in favour of Ms V against the mother and the mother was subsequently charged with two breaches of the IVO particularised by her leaving derogatory reviews about Ms V on her workplace website. On 18 March 2019 the mother applied for an IVO against Ms V on behalf of X. On 1 April 2019 the mother obtained a report on X from Ms W, psychologist. That report references a referral from X’s General Practitioner after the mother raised concerns of grooming and emotional abuse by the father.

Evidence

Evidence Before The Court

Later amendments to the Act at s 60CC(2A) provide:in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b). THE EVIDENCEThe father - credit The father presented with a calm demeanour and despite lengthy and at times aggressive cross-examination from the mother. In respect of parenting issues he was child focused and keen to avoid conflict or argument with the mother. Nevertheless, his responses in cross-examination often indicated a lack of understanding of or commitment to his own case. At times he gave responses apparently without thought or real understanding such as when asked if there might be some impact for X at such a young age being removed from her mother's care, he responded that there would be “no impact”. His responses at times appeared prepared, rehearsed or given in a form he thought might please the Court but at times without insight into the reality of X’s circumstances and needs. The father was defensive in his evidence and reluctant to make admissions against interest. Whilst not aggressive in his criticism of the mother, such criticisms were subtle and frequent with a reluctance to acknowledge any of the mother’s positive traits. Frequently, his responses deflected to historical issues between the parties such as the mother’s drug use. Broadly speaking, the father appeared to be somewhat naïve in respect of the motivation of his own case where he had entered into consent parenting orders as recently as 2018. When challenged in this respect he responded with broad generalities such as concerns as to the mother's health and historical drug use both being factors which were or should have been within his knowledge and understanding at the time of the consent orders. As such, the more recent issue of concern for him is what he sees as the mother’s allegations against him of sexual abuse of X. In the abstract therefore his evidence in support of his current application and its motivation rested to a large degree on this complaint. The mother – credit The mother presented as an entirely different personality to the father. Whereas he seemed at times emotionally detached, she was of assertive, vibrantly emotional, and spontaneous personality. Her focus was often distracted and her frustrations with the process evident to the extent she on occasions simply left the Court without either request or permission. She did, however, display considerable intelligence and understanding of the process and at times her cross-examination, including of the experts, was both skilful and revealing in extracting deficiencies in the evidence. The mother’s proposals differed significantly at times throughout the trial and she frequently seemed prone to exclamation without consideration. Like the father, the mother claimed a high level of commitment to X, but a reluctance to acknowledge virtually any competency in the father's parenting capacity or insight.

Decision

Reasons for decision

The orders that each of the parties now seeks in respect of X is substantially different than the current arrangement. Consequently, it is likely that one or both of the parents might be aggrieved by the orders that I make together with these Reasons. Nevertheless, they must each understand that the Court makes orders as best it can in respect of the recipe of facts given by the parties themselves. It is not the aim of this Court to make optimum or ideal orders but simply orders, on the factual platform, that attend to X's best interests circumstantially. It is then incumbent on these parents, armed with the orders and reasons, to move on and parent their child accordingly. If it is understood that litigation in these Courts is prima facie contrary to best interests of children and often destructive of their relationships with their parents, then the inevitable disputes that will arise between the mother and father in respect of X should be conciliated and negotiated with respect and with focus on X’s needs rather than to use these Courts as a forum for airing adult dispute.FINDINGS AND CONCLUSIONS The father claims that his application for parenting orders is motivated in part by the mother’s propensity to make unsubstantiated allegations of sexual abuse or grooming against him. Firstly, there is no evidence to allow me to make any such findings that the father represents an unacceptable risk for X. After hearing the evidence, I am of the view that this issue itself is without substance and reflects only the personalities and mutual suspicion of these two parents. Notably, and when confronted with X’s revelations that she plays with the father's nipples and sucks his fingers, the mother did not stop time–with between X and the father. She did alert the authorities but I accept her evidence that she thought this to be the proper course. I say only that it is unfortunate that perhaps such an innocent behaviour may have resulted in such lengthy litigation. I am able to find on the evidence that X has established, successful and meaningful relationships with each of her parents in circumstances where she understands her mother to have been her primary parent since separation. I accept, however, that there is a degree of “anxious attachment” for X with the mother but also accept Ms Y’s comments that it is “an attachment with potential for repair”. I accept Ms Y's comments that X’s relationship with the father is strong and secure. Equally, however, I agree with the family consultant in that X’s emotional well–being would be compromised if she was to spend significant time away from her mother. It is abundantly clear from my observations during this trial and supported by the expert evidence that these two parents are of significantly different personality types. The mother is volatile, emotional and spontaneous whilst being intelligent and articulate. The father is calm and considered in demeanour. Whilst these personality differences inevitably lead to conflict between the parents, X has been able to benefit from the breadth of her parents’ personalities in the positive that each can provide to her. Nevertheless, she has also been the subject of and subject to her parent’s overt conflict. Each of the parents is culpable in this respect. The evidence, and perhaps the benefit of this long trial is that both the father and the mother now have a higher degree of understanding that X must be quarantined from their adult conflict. Further, there are indications that each now have developed a greater insight and are prepared to be more cooperative in the future in the parenting of X. Frankly, litigation should, as always, be a last rather than a first resort to deal with any issues.

Ratio Decidendi

Legal Principle Established

There is some merit in the father's argument that the mother is prone to making unilateral and perhaps spontaneous decisions in respect of X. Most notably was the mother's relocation with X to the K Region. This is again a factor of the mother's personality rather than some malicious intent. The indications from the evidence of both the parties in this Court is that they understand the need to communicate and contribute equally to long-term decisions for X. In this respect, and from the evidence of each of them in court, I glean some newfound insight and greater maturity in this respect.Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or(ii) any other children, or person (including any grandparent or other relative of the child), with whom the child has been living The orders sought by the father, although being a change of primary parent, are in reality discrete in any changes that would be forthcoming for X. She currently lives nine nights per fortnight with her mother and five nights with the father. The father proposes that the changes occur, in any substantial way, during school terms where she would go to school from his home. Similarly, the mother proposes that the father's time be effectively limited to weekends, although she has varied her position throughout this lengthy trial. I place some weight on Ms Y's evidence given in court, being more objective than that of either of the parents, where she says that X's emotional well-being would be compromised if she spends significant time away from her mother.Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis The father, to his great credit, has moved in close proximity to the mother who had previously moved herself and X to the Suburb H area. This in itself is demonstrative of the father's commitment to a relationship with X and also where, conversely, and whilst the mother undoubtedly had proper motives for the move, shows in her a capacity to act unilaterally and spontaneously without regard to X's relationship with the father. Nevertheless, there are now no practical difficulties in X moving easily between her parents’ homes as indeed she now does.Section 60CC(3)(f) the capacity of each of:(i) the child's parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, and including emotional and intellectual needs Each of the parents is critical of the other in this respect. The mother questions both the father's commitment to and his skills in caring for X. The father challenges the mother's capacity to commit to X's education and acknowledges what the mother herself admits are financial constraints which impact on her ability to accommodate X satisfactorily and consistently.