Calpin & Leigh

Case [2023] FedCFamC1F 767

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Calpin & Leigh [2023] FedCFamC1F 767

File number: MLC 9080 of 2020
Judgment of: BENNETT J
Date of judgment: 6 September 2023
Catchwords:

FAMILY LAW- PARENTING – where short relationship of two years with serious and persistent family violence for last eighteen months of the relationship – both parents engaged in family violence as perpetrators – impossible and unnecessary to make findings about who initiated family violence – both charged with criminal offences in relation to family violence – where parents separated when child was three months old – where there is no prospect of parents being able to co-parent for the benefit of the child.

FAMILY LAW- PARENTING – where both parents have mental health and personality challenges – where mother more curious about and compliant with treatment – where husband consumes alcohol excessively – where father has restricted supervised time with child and not sufficiently motivated to comply with orders for testing for use by him of illicit substances or alcohol at abuse level – where husband has paid paltry amount of child support.

FAMILY LAW- PARENTING – where mother seeks to relocate to Country B where her family of origin live – where mother claims that she will have support of her family – where family support for mother is largely untested but more extensive relationship between child and father is aspirational – where child’s relationships with grandparents on both sides curtailed for different reasons.

FAMILY LAW- PARENTING – where expert evidence supports relocation – where relocation permitted to occur within six months – where time spent to continue to be supervised but for extended periods – where father is to travel to Country B to spend time with child prior to mother being required to bring child back to Australia.

INTERNATIONAL TREATIES – where 1996 Hague Child Protection Convention has entered into force between Country B and Australia and enables recognition of parenting orders made in Australia in Country B by operation of law and registration for enforcement subject to application being made.
Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60CC, 67DA & 65DAA
Division: Division 1 First Instance
Number of paragraphs: 262
Date of hearing: 3-4, 8-11 and 14 November 2022
Place: Melbourne (via MS Teams)
Counsel for the Applicant: Ms Mallett SC
Solicitor for the Applicant: Teak Legal & Consulting
Counsel for the Respondent: Mr Scriva
Solicitor for the Respondent: Bramham Lawyers
Counsel for the Independent Children’s Lawyer: Ms Bonney
Solicitor for the Independent Children’s Lawyer: Dinning & Co
Table of Corrections
1 December 2023 On cover sheet, ‘14 November 2022’ has been inserted as a date of hearing

ORDERS

MLC 9080 of 2020

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

MS CALPIN

Applicant
AND:

MR LEIGH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

6 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.All previous Orders with respect to the child X born 2020 be discharged.

2.The mother…

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AGLC
Calpin & Leigh [2023] FedCFamC1F 767
Case
[2023] FedCFamC1F 767
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Calpin & Leigh centred around the parenting arrangements for a child, X, born in 2020. The parents, who had a tumultuous relationship marked by significant family violence over the last eighteen months, separated when X was three months old. Both parents were found to be perpetrators of family violence, and neither could be deemed the initiator. The father was charged with criminal offences related to the violence and had a history of excessive alcohol consumption. The mother, who had a more extensive support network and better mental health management, sought to relocate to Country B with the child.

The primary legal issues before the court were whether the parents could co-parent effectively and, if not, what arrangements would be in the child's best interests. The court had to consider the family violence, the parents' mental health and substance use, and the potential impact of relocation on the child's relationship with both parents. The court was also required to decide on the extent and nature of contact between the child and the father.

The court concluded that the parents could not co-parent effectively due to their entrenched conflict and inability to manage their feelings towards each other. The mother was found to be a more stable and supportive primary carer, which was crucial for the child's well-being. The court accepted expert evidence that relocating to Country B would be beneficial for the child, providing a distance from the father that would likely reduce conflict and allow for a healthier relationship with both parents. The court ordered that the mother have sole parental responsibility for major long-term issues, with specific provisions for the father's involvement and the mother's relocation to Country B. The father was allowed supervised visits and travel to Country B before the relocation. The court also mandated that the child receive therapy and that both parents facilitate this process.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All previous Orders with respect to the child X born 2020 be discharged.

2. The mother have sole parental responsibility for major long-term issues for X subject, where practicable, to:

(a) the mother providing written notice to the father of any major issues concerning X, the proposed decision to be made and invite the father to respond to the proposal in writing within 7 days; and

(b) upon receiving a written response from the father the mother consider the response, make the final decision and advise the father in writing within 14 days of the decision and the reasons for that decision.

3. X live with the mother.

4. That the mother, Ms Calpin, of the child X born 2020 be permitted to apply for an Australian Passport to enable the child to leave Australia notwithstanding that the father of the child has not signed the passport application form and furthermore the said child be permitted to leave Australia.

5. That pursuant to Section 8(1)(b) of the Australian Passports Act IT IS REQUESTED, that the Department of Foreign Affairs and Trade forthwith do all acts and things to issue an Australian passport in the name of the said child.

6. The mother keep the father informed as soon as practicable in the event of any hospitalisation, significant health issues or illnesses suffered by X together with the relevant particulars of the treatment received by X including the medications prescribed for him.

7. The mother keep the father updated in relation to any specialist appointments concerning X which relate to his welfare and development.

8. The mother be permitted to relocate to Country B with X.

9. The mother provide the father and the independent children’s lawyer with 30 days’ notice in writing of the date she intends to leave Australia and the father have an opportunity to farewell X prior to that date AND IT IS NOTED THAT there is no order entitling the father or any member of the father’s family to farewell X at the airport on his departure from Australia.

10. The mother inform the father and the independent children’s lawyer of the arrival of herself and X in Country B within 24 hours of arrival.

11. The mother and father do all acts and things necessary to facilitate X’s attendance at a play therapist as nominated by the independent children’s lawyer and subject to their attendance being required or desirable.

Background

Background to the litigation

It should be noted that, in Australia, school holidays are generally for two weeks in April which coincide with Easter, two weeks in late June/early July, two weeks in September and long summer vacation from around 19 December until 28 January. In Australia, X would commence school in February 2025. SOME BACKGROUND AND HISTORY OF FAMILY VIOLENCE The parent’s cohabitation was for only two years. The parents met in 2018, commenced cohabitation the following month and X was born in 2020. The parents separated in 2020 when was X was only 3 or 4 months old. The severity of family violence over such a short relationship leads me to conclude that the parents’ relationship was highly conflictual to a degree that I would describe as toxic and consistently violent. The mother deposed that some months prior to meeting the father she had an unplanned pregnancy resulting in an abortion. The mother received a contraceptive implant which was subsequently removed in the first few weeks of entering into the relationship with the father. The mother deposes that the father would insist he does not like using condoms and on one occasions, while in Adelaide, the mother alleges the father removed the condom without the mother’s consent. The mother deposes that in the early stages of the relationship she believed the parties shared a “good intimate connection”. The mother goes on to depose that she noticed the father engaging in “flirtatious conversations” with other women which the father denied. The mother deposes that the father had pornographic images of women, including images of his former partners, saved on his phone. The father maintained he was not aware the images were still on his phone. Further, the mother deposes that the father had paid subscriptions to pornographic content. The mother deposes that the father’s interest in pornography was “a common source of arguments” between them. On the contrary, the father deposes that he did not watch pornography during the relationship and instead that the mother “was always in the mood to be intimate” to the extent that he would “deny her advances”. In 2018 the father punched a hole in the bedroom door when the team he supports lost a sporting final. The father alleges that the mother punched holes in the walls in anger. The mother deposes that the first significant incident of family violence occurred towards the end of 2018 whereby she alleges the father held her down and choked her. The father denies ever choking the mother. In late 2018 the parties travelled to Country B to visit the maternal family. It was during this visit that the father first met the maternal family and travelled to Country CC for an extended weekend. The maternal grandmother paid for the mother and father’s airplane tickets. In early 2019 police attended the family home following a report by the mother’s friend who overheard the parties arguing over the phone. The mother told police she had thrown a piece of chicken at the father and that the father responded by grabbing her by her hair, dragging her along the floor and hitting her head into the ground repeatedly. The mother claims that she blacked out and suffered a blood nose as a result. The father gave a different account claiming that the mother hit him in the nose with a frozen chicken and that he pinned the mother to the ground to restrain her from continuing to throw X’s baby formula in the bin. Victoria Police issued a family violence safety notice and an IVO was applied for naming the mother as an affected family member and the father as the respondent. The father was removed from the property and later charged with an offence. He pleaded guilty and received a good behaviour bond.

Evidence

Evidence Before The Court

The family violence was so pervasive that no useful purpose is served by attributing blame to one parent over the other. I am satisfied that the family violence was of such magnitude that there is no prospect of the parents being able to share parental responsibility in a way that is beneficial to X. I find that the presumption in favour of joint parental responsibility is rebutted.EXPERT EVIDENCE The single expert witnesses in this case are the Family consultant and Dr E, the consultant psychiatrist. Their evidence straddles all relevant matters and is of assistance to the court in its assessment of the parties’ proposals and in determining what outcome is in X’s best interests. Family Consultant Ms F The Family Consultant interviewed the parties via video on 16 December 2021 and due to the Covid-19 lockdown there was no observations with the child. At that time, the child was living with the mother and spent supervised time with the father at a contact centre which was occurring for one hour per fortnight. The mother was not working and was in receipt of a single parenting payment and family tax payments. The father lived on a property where he was employed. When interviewed, the mother proposed that she be permitted to relocate to Country B with the child and expressed a commitment to ensure that communication between the child and father be maintained with FaceTime and some travel time in the future. When interviewed, the father proposed that the child remain in the primary care of the mother and the child’s time with him build up to one night per week and that this time ideally be unsupervised. He also expressed that he wants the child to spend time with him every weekend and possibly more during the holiday periods. When considering drugs and alcohol, the mother acknowledged to the Family Consultant that she had historical, social marijuana use, however has denied any use since the birth of the child. She took issue with the father’s alcohol consumption, which she reported was in excess and impacted his capacity to contain and manage his anger. Although, the father denied that he consumes alcohol to excess, he expressed that he previously drank alcohol more regularly, however indicated this was not a problematic amount. The mother informed the Family Consultant that she was suffering from depression and anxiety during the parties’ relationship which was exacerbated by being in a rural and isolated area without a support system. At the time of the interview, the mother was seeking treatment through a psychiatrist three times a month and her community mental health worker. The father informed the expert that he had been experiencing an occasional low mood and anxiety and he was also seeking treatment through a psychiatrist. It is recorded in the Family Report that the mother said that she had been granted permanent residency which made many services and supports available to her, but informed the Family Consultant of her desire to relocate to Country B. The mother explained that she would be able to provide the child with increased stability and raise him with the support of her family. It is recorded that the mother plans to initially reside with her sister in Country B whilst looking for an appropriate accommodation for her and X.

Decision

Reasons for decision

The mother’s proposal to go to live in Country B puts her and X in a situation which the mother considers is optimal and which there is ample evidence before the court to satisfy me is preferable to the manner in which the mother now lives. That is, in temporary housing without secure employment or a realistic ability to obtain employment and without any family support. In considering a relocation case at this I take into account the mother’s freedom of movement as a relevant consideration.CONCLUSION I am satisfied that the parents are ill-equipped to, and cannot, co-parent X. The father, more so than the mother, cannot put aside his feelings of anger and resentment towards the mother and recognise that X needs parents who can tolerate one another before he can have a meaningful relationship with both parents which will be beneficial. I am satisfied that it is in X’s best interests for the mother to have sole parental responsibility. The father’s concession that X should remain in the mother’s primary care is not so much an endorsement of the mother but a realisation that he has no prospect of succeeding with a residence application. I accept the Family Consultant’s view that relocation of X to Country B in likely to be beneficial because it will put a considerable distance between the parents. I appreciate that the parents will have to communicate over time to be spent between X and the father but that will be once or twice a year, not each weekend or alternate weekend. I accept that the mother will foster a relationship between the father and X, providing that she thinks it is safe to do so. Her attitude in that regard since separation has been reasonable. I do not believe that the mother’s family will discourage or undermine X’s relationship with the father. Their evidence about the father’s personal deficiencies, which is set out above, was given frankly and honestly rather than with malice. I am satisfied that prior to separation the parental dynamic was a violent and conflicted one that had enormous potential to harm X psychologically and emotionally. Post separation, I predict that as X grows older, the father will have little or no tolerance for X’s relationship with or positive feelings for the mother. That will be difficult for X and a source of conflict between him and the father. Of course the father may change his behaviour and attitudes but there is no sign of that at the moment. The mother’s mental health is likely to be better in Country B than if she remains in Australia. I am satisfied that it is more important and beneficial for X to have a healthy and supported primary carer than to aspire for X to have a meaningful relationship with both parents. There is no goodwill to build on. Both parents have limitations. That is not to say that relocation will make a meaningful relationship between X and the father impossible. I have confidence in the mother’s resolve to promote a relationship between X and the father particularly if the mother is removed from the father’s environment.

Ratio Decidendi

Legal Principle Established

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