Charr & Dalton (No 3)

Case [2023] FedCFamC1F 259

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Charr & Dalton (No 3) [2023] FedCFamC1F 259

File number(s): DUC 273 of 2021
Judgment of: SMITH J
Date of judgment: 10 March 2023
Catchwords:  FAMILY LAW – Parenting – final hearing – father, mother and paternal aunt each seek parenting orders –paternal aunt heavily involved in raising child during parents’ relationship – mother and father both allege family violence - father withdraws application and supports paternal aunt’s application during trial – mother has a tragic personal history – mother has deficits in parenting capacity – paternal aunt offers a safe and stable environment - no capacity for mother and paternal aunt to share parental responsibility - best interests of child - child to live with paternal aunt – child to spend regular unsupervised time with mother – child to spend regular unsupervised time with father – paternal aunt to have sole parental responsibility – ancillary orders.
Legislation:

Evidence Act 1995 (Cth) ss 76, 79, 140.

Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 65AA, 65C, 65DA
Cases cited: Carlson & Fluvium [2012] FAMCA 32
Division: Division 1 First Instance
Number of paragraphs: 401
Date of hearing: 13 – 21 February 2023
Place: Newcastle
Counsel for the Applicant: Mr Hogg
Solicitor for the Applicant: Central West Legal Pty Ltd
Counsel for the First Respondent: Ms Yu
Solicitor for the First Respondent: JWP Lawyers
Counsel for the Second Respondent: Mr Hogg
Solicitor for the Second Respondent: Central West Legal Pty Ltd
Counsel for the Independent Children's Lawyer: Mr Mort
Solicitor for the Independent Children's Lawyer: Joplin Lawyers

ORDERS

DUC 273 of 2021

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

MR CHARR

Applicant
AND:

MS DALTON

First Respondent

MS D

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

10 MARCH 2023

RECITALS

The following definitions are for the purpose of these Orders:

A.1 “Mother” means the First Respondent, Ms Dalton, born 1987.

A.2“Father” means the Applicant, Mr Charr, born 1978.

A.3“Paternal Aunt” means the Second Respondent, Ms D, born 1972.

A.4“X” means the child, X, born 2019.

A.5“Parties” means the Paternal Aunt, Father and Mother.

A.6“Parents” means the Father and the Mother.

THE COURT ORDERS THAT:

PARENTAL RESPONSIBILITY

1.The Paternal Aunt shall have sole parental responsibility for the long-term decisions relating to the care, welfare, and development of X.

2.Save and except in circumstances of emergency, in exercising parental responsibility the Paternal Aunt shall:

2.1Notify the Mother and Father within forty-eight (48) hours of becoming aware of any long-term decision to be made for X;

2.2Allow the Mother and Father at least seven (7) days to consider the decision and provide input; and

2.3Notify the Mother and Father within forty-eight (48) hours of making the decision which has been made.

LIVE WITH PATERNAL AUNT

3.X shall live with the Paternal Aunt in or about C Town (NSW).

Change of live with arrangements

4.In order to facilitate Order 3 above, the Mother is to…

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Details
AGLC
Charr & Dalton (No 3) [2023] FedCFamC1F 259
Case
[2023] FedCFamC1F 259
Decision Date

CaseChat Overview and Summary

In the matter of Charr & Dalton, the court was presented with a dispute regarding the care and custody of a minor child, X. Both parents, Mr Charr and Ms Dalton, sought sole parental responsibility for X, with Ms Dalton arguing that Mr Charr's conduct was inconsistent with his role as a parent and posed a risk to X's welfare. The Family Court was tasked with determining the best interests of the child, considering the evidence presented by both parties.

The central legal issues before the court involved assessing the credibility and reliability of the evidence provided by both parents and evaluating their respective parenting capacities. The court had to consider the parents' testimonies, the documentary evidence, and expert opinions to determine which parent was more suited to have sole parental responsibility for X. In particular, the court scrutinised the parents' punctuality and their overall ability to provide a stable and nurturing environment for X.

The court concluded that Mr Charr's evidence was not credible, primarily due to inconsistencies in his testimony and his history of providing false evidence under oath. The court found that Mr Charr's actions, such as punching a car in frustration and fracturing his hand, and his subsequent attempts to downplay these incidents, undermined his credibility. Additionally, the court noted that Mr Charr had a history of domestic violence, as evidenced by an AVO taken out by his former partner, Ms W, who alleged that he assaulted her in the presence of their two sons. On the other hand, the court found Ms Dalton's evidence to be more reliable and consistent, despite some concerns about her parenting capacity, such as her tendency to be late for appointments and supervised visits.

Ultimately, the court determined that Ms Dalton was better suited to have sole parental responsibility for X, given the evidence of Mr Charr's unreliability and his history of domestic violence. The court ordered that X live with Ms Dalton and that Ms Dalton have sole parental responsibility for X.

The court's decision was based on a comprehensive evaluation of the evidence presented and the parents' respective abilities to provide a stable and nurturing environment for X. The court's primary concern was the welfare of the child, and it found that Ms Dalton was more likely to provide a safe and stable home for X.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Each of these things individually may seem, and indeed individually may be, relatively small issues, but when amassed and viewed as a whole, each piece of evidence reinforces the others to show a picture identified by the expert’s opinion as demonstrating a lack of general parenting capacity. Documentary evidence of opinion It is important to note that documentary evidence of opinion must be treated with some caution. However, concerns about the mother’s care and parenting capacity of X come not just from one source, but from both the childcare centre and the supervision centre, and appear to come from multiple reporters within each centre. Lateness The mother appears to have a significant issue with timeliness. She was 75 minutes late for her 9.00 am appointment with the expert, which she explained in her affidavit at paragraphs [156]–[158] by reference to a car accident. As set out at Exhibit ICL8, the mother completely failed to attend an appointment with the ICL arranged for 19 December 2022. The mother was consistently late to supervised visits for drop-offs and pick-ups as set out in supervision reports, which caused the supervisors considerable difficulty. See, for example, MFI 4 page 358, the report of 5 November 2022. It was noted that the mother:[41]… consistently arriving late for visits is negatively impacting [X], in terms of her becoming tired and irritable during the visit and impacting on the quality of time with [Mr H]. [41] ICL 10, MFI 4, p. 358. In the report of 19 November 2022, MFI 4 page 327, it was said that:[42] As previously raised, [Ms Dalton] has a pattern of running late and not adhering to the app requirements. Of the previous seven visits, [Ms Dalton] has been late for five. For visit six, [Ms Dalton] was 90 minutes late and for visit seven [Ms Dalton] was 75 minutes late.It was also recorded that:[43][Ms Dalton] has made comments to supervisors that they have arrived back late from Sydney at 3am and [City NN] at similar hours, which is destabilising for young children.[42] ICL 10, MFI 4, p. 327. [43] ICL 10, MFI 4, p. 358. The mother denied saying this, or that she would return at 3.00 am in the morning from visits to Sydney with X, but there is no evident reason for the supervisors to have made this up and the mother would travel with X to Sydney to see the older children. I note the mother was, as she accepted in cross-examination, consistently late for Court, particularly on the days she was giving evidence, delaying the start of the days proceedings. In cross-examination about these various incidents, the mother had a variety of reasons for why she was late, and of course, we are all going to be held up by traffic accidents and unforeseen circumstances from time to time. That is an inevitable part of life. But as the expert said in relation to the mother’s overall parenting, it is the pattern of behaviour that is relevant. It is this consistent inability to plan, coordinate and execute her timely attendance, and attendance with X, at important events that is a feature which seems to create, to some extent, what the expert called a “chaotic” existence for X.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Apart from the fact that the father had a fracture of the neck of the fifth metatarsal, notoriously known as “the boxer’s fracture”, it is common ground that Ms D was there and Ms D said at paragraph [67] of her affidavit that during an argument between the parents about the father’s alleged affair, she broke them up, and that:… [Mr Charr] did punch his car out of sheer frustration but at no point touched [Ms Dalton], I managed to calm [Mr Charr] down and took him inside and told [Ms Dalton] and [Mr Charr] to sit and talk which they did, the end result was [Ms Dalton] was coming home with me and they would seek counselling.(Emphasis added) And even more significantly, the father himself had told the expert, as reported at paragraph [100] of her report, that:… The father also volunteered that in [late] 2020, he punched his car (or bike) due to frustration with the mother and broke his hand. Despite all of this, the father maintained under cross that he did not punch the car until taken, in cross‑examination, to the overwhelming contrary documentary evidence above. He then, momentarily, admitted that he had punched a car in frustration causing the fracture his hand, but then, for reasons which I cannot understand, backtracked and tried to demonstrate how he had been moving his arms in frustration, and his hand had accidentally come into contact with a car, fracturing his hand. He was then pressed again, and finally admitted the obvious fact, that, as Ms D said and as he had told the hospital and had conceded to the expert, he had punched a car in frustration. This oral evidence from the father was not only surprising given the prior concession to the expert, but indicative of someone who seemed to have no real appreciation of the obligation to give truthful evidence to a Court. The issue of the alcohol and the fracture to hand were two clear examples of the father choosing to give false evidence under oath. His evidence concerning text messages comparing the mother’s assault at an event with his infidelity, which I will come to, was also unbelievable, given no other explanation for what his text messages meant was proffered and also given their clear terms. His evidence that he did not have access to a weapon, given that the object identified as a weapon by the mother was confirmed by Ms D to be a having spoken to the grandfather in her reply text message, was similarly unbelievable. In simple terms, I have little faith in the credibility of the father’s evidence. One suspects that the difficulty the father faced with his credibility after his cross-examination was a factor in the forensic decision he later took, discussed more in a moment, ultimately not to press his application, and to instead support Ms D’s application that X live with her, and that Ms D have sole parental responsibility. The father has two older children: Mr T, aged 24; and Mr V, aged 23. Their mother was Ms W. There was an AVO dated late 2008 protecting Ms W from the father, with allegations being that the father assaulted Ms W by grabbing her around the neck and pushing her towards a fireplace, causing her to fall. Ms W told police this occurred in the presence of their two then young sons. It was also alleged the father kept large knives hanging on the wall of the house, and Ms W told the police she was:[6]…sick and tired of being attacked by the defendant. [6] Exhibit B, MFI 4, p. 47.