CHESIRE & LACONI
[2020] FCCA 2237
•13 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHESIRE & LACONI | [2020] FCCA 2237 |
| Catchwords: FAMILY LAW – Parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D Federal Circuit Court Rules 2001, r 16.05 |
| Applicant: | MR CHESIRE |
| Respondent: | MS LACONI |
| File Number: | PAC 3282 of 2015 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 2 April 2020 and 30 April 2020 |
| Date of Last Submission: | 30 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 13 August 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Wilkins - Phillip A Wilkins & Associates |
| Solicitors for the Respondent: | There was no appearance for the Respondent |
| Solicitors for the Independent Children’s Lawyer | Mr Naidovski - Sydney West Family Lawyers |
ORDERS
All previous parenting orders shall be discharged.
The Father shall have sole parental responsibility for the child X born … 2011.
The child shall live with the Father.
The child shall spend time with the Mother as agreed in writing and at the Father's sole discretion.
That the Father shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the said child.
That pursuant to section 11 (1) and (2) of the Australian Passports Act 2005, these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian passport for the child X born … 2011.
That the Australian passport issued to the child shall be provided to the Father to hold on behalf of the child.
That the said child be permitted to travel outside the Commonwealth of Australia with the Father for a holiday during school holiday periods without prior notice to or permission of the Mother.
The Mother shall do all acts and things to return to the Father within seven (7) days the child's passport in her possession, and in the event she fails to do so, the Father is at liberty to cancel the passport with the Australian Passports Office.
That pursuant to section 68B the mother shall be restrained from attending on the school, or school events, or extra-curricular activities or health providers of the child whilst the child may be in attendance at such school, extracurricular activity or health provider, or approach within 100 meters of the residence of the child, save and except with the written consent of the father received by text message in advance.
That the Father shall forthwith provide to the child's school and health providers a copy of these Orders.
Direct the Independent Children’s Lawyer to notify the Mother, at her last known residential address, or by email, of today’s final parenting Orders, within seven days.
NOTATION:
(a)Pursuant to rule 16.05 of this Court’s Rules, the Court or a Registrar may vary or set aside an order made in the absence of a party. Any application by the mother to set aside the above final parenting orders shall be made within 14 days of being notified of such orders.
IT IS NOTED that publication of this judgment under the pseudonym Chesire & Laconi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3282 of 2015
| MR CHESIRE |
Applicant
And
| MS LACONI |
Respondent
REASONS FOR JUDGMENT
Introduction
This final and undefended parenting hearing relates to the child X born … 2011, aged 8 years.
On 2 April 2020, the proceedings were adjourned for final hearing to 30 April 2020.
At the hearing, the Father appeared by his counsel, and the ICL appeared. There was no appearance by the Mother, and the Court is satisfied, based on all the material before the Court, that the Mother has had notice of today’s proceedings. The Court observes that historically, in relation to these proceedings, after about mid-2019 and to date, the Mother failed to appear at Court. Her last former solicitor withdrew from the proceedings in about June 2019.
Proposals
The Father’s Further Amended Initiating Application filed 8 April 2020 seeks final parenting orders, inter alia, that the Father have sole parental responsibility for the child; that the child live the Father; and that the child spend time with the Mother as agreed in writing and at the Father’s sole discretion.
The ICL sought orders as set out in his Minute of Final Order proposed by him, Exhibit B. These proposed orders mirrored the Father’s proposed orders, as referred to above.
The Mother’s Response filed 15 February 2018, sought orders, inter alia, that the parties have equal shared parental responsibility for the child; the child live the Mother; and that the child spend certain overnight time with the Father during school term time and on other occasions.
Material relied upon
The Father relied upon the following documents:
a)The documents set out on page 2 of his Case Outline dated 1 April 2020 as amended on 29 April 2020, by his counsel, Ms Conte-Mills.
The Court has had regard to the Mother’s filed documents being her Response filed 15 February 2018; her Affidavit filed the same date, and her Notice of Risk filed the same date.
The following Exhibits were relied upon:
a)Exhibit A: summary of subpoenaed material relied upon by the ICL;
b)Exhibit B: the ICL’s proposed Minute of Final Order;
c)Exhibit C: letter to the Mother from the Court dated 9 April 2020;
d)Exhibit D: the Father’s Case Outline;
e)Exhibit E: the Family Report of Ms A dated 12 January 2019.
Evidence
Because the Mother failed to appear at this final hearing, unless otherwise stated below, where the parties’ evidence is in conflict, the Court prefers the evidence of the Father.
The evidence in this case is described below, and also under the Court’s discussions in relation to s60CC of the Family Law Act 1975, below.
The Father is aged 59 years. The Mother is aged 43 years.
The parties hail from Country B.
The parties married in about December 2018 in Country B and they returned to Australia in about January 2009. They separated in about May 2015.
The Mother has another child, C born … 2016. She also has another child Mr D, aged 21.
During the child’s life, including post separation, both parents have cared for the child at differing times, although in 2019 and 2020 the predominant care was provided by the Father. In 2020, and as at the date of the Father’s Affidavit filed 14 April 2020, the child had only spent 12 nights with the Mother. The Court accepts the Father’s evidence in this context.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has a meaningful relationship with the Father and will benefit from a continuance of that relationship.
As at the date of the family report interviews in late December 2018, it appeared that the child had a good relationship with the Mother.
The child may benefit from having a meaningful relationship with the Mother provided it is safe for him to do so.
Should the Court make the ICL’s proposed orders in Exhibit B, inter alia, providing for the child to spend time with the Mother as agreed in writing and at the Father’s sole discretion, the Court finds that the Father will likely facilitate the child spending regular time with the Mother provided he is satisfied that the child will not be exposed to any significant risk of harm. The Court is satisfied that the Father is likely to act sufficiently protectively towards the child, in terms of potentially spending time with the Mother.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court finds that during the parties’ relationship the Mother perpetrated physical family violence upon the Father in the presence of the child. The Court accepts the Father’s evidence in this regard.
An AVO was issued for the Father’s protection against the Mother in 2013. An AVO was issued for the Father’s and the child’s protection against the Mother in 2015.
The Court finds that the Mother has regularly in the past exercised excessive physical discipline upon the child. Such physical discipline has often resulted in the child incurring bruises on his body. The Mother on occasion has used implements to physically discipline the child. The Court finds that the child, when spending time with the Mother, has been scared of the Mother accordingly.
The Court finds that the Mother, on occasion, has verbally abused the child.
The Court accepts the Father’s evidence that on occasion the Mother has denigrated the Father in front of the child.
The Court accepts the Father’s evidence that the Mother has been unable to care for the child consistently whilst the child is in her care. For example, the Mother will expect the Father to immediately come and collect the child from the Mother despite the Mother demanding to take the child at first instance. This occurred when the Mother returned from Country B in 2020 when she demanded to take the child. The Mother collected the child on 1 April 2020 from the Father. Then the next day the Father received a message from the Mother asking for the Father to collect the child. In this context, the Court accepts the Father’s evidence that he has observed the child to be constantly nervous about who will be picking him up from day-to-day. He has further observed in this context that the child does not return to the Mother’s care from the Father’s care willingly due to the Mother’s inconsistency.
The Court finds that on occasion the Mother has driven a motor vehicle, with the child a passenger, when the Mother was significantly affected by alcohol consumption. The Court also finds that the Mother lost her driver’s licence in 2019 relating to child seat offences.
Should the Court make the ICL’s proposed order that the child spend time with the Mother as agreed in writing and at the Father’s sole discretion, the Court, again, is satisfied that the Father will likely facilitate the child spending time with the Mother but only if it is safe to do so. Again, the Court is satisfied that the Father will act sufficiently protectively towards the child in this context.
Further, there is a significant risk that the Mother will fail to spend time with the child if the Court was to make specific time-with orders in favour of the Mother. In such circumstances, there is a significant risk that the child will experience emotional harm through the experience of fear, disappointment and uncertainty.
It will be appropriate, having regard to the above matters under this need to protect primary consideration, that the Court make the ICL’s proposed Order 10 relating to a section 68B restraining order against the Mother. In this context, there is a significant risk that in the absence of such restraining order the Mother will seek to remove the child from the Father’s primary care and exercise excessive physical discipline upon the child; if the Mother was to do so, the child would experience physical and psychological harm.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court finds that the child is fearful of the Mother physically chastising him excessively, by reason of the Mother’s past excessive physical discipline exerted upon him. Further, the Court finds that the child has often been reluctant and scared to return to the Mother’s care because of the Mother’s inconsistent care of him. The Court accepts that it is likely that the child wishes to remain in the Father’s primary care by reason of the child’s lived experience when in the care of the Mother, and in this regard the Court refers to its discussion above under the need to protect primary consideration. The Court would give significant weight to these views of the child.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Court refers to its discussions above under the need to protect primary consideration.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There is no suggestion that the parties have not maintained the child when the child is in their respective care.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court is of the view that should the court make the ICL’s proposed orders in exhibit B, the child’s good relationship with the mother should not be detrimentally affected; the court refers to its discussions above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable.
(f) The capacity of:
(i) each of 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, including emotional and intellectual needs
The Father has such capacities. Whilst the Mother would appear to have the capacity to provide for the child’s intellectual needs, she lacks capacity to consistently provide for the child’s emotional needs, and in this regard the Court refers to its discussion above under the need to protect primary consideration.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child has previously suffered speech delay and separation anxiety and received treatment. The Father has been on anxiety/depression medication for some 20 years. He obtains regular treatment for this issue.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Father has demonstrated appropriate attitudes towards the child and to his responsibilities of parenthood. As to the Mother, she has failed to demonstrate appropriate attitudes towards the child and to her responsibilities of parenthood, as discussed above, inter alia, under the need to protect primary consideration.
(j) Any family violence involving the child or a member of the child's family
The court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter
The Court refers to its discussions above under the need to protect primary consideration.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It will be preferable to make the Father’s proposed orders, as opposed to the Mother’s proposed orders, and in this context, the Court refers in particular to its discussions above under the need to protect primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant
The Court is satisfied that the ICL’s proposed Orders 5-9 inclusive, relating to Australian passports for the child and overseas travel for the child will be in the best interests of the child. The Court is satisfied that it is unlikely that the Father will travel overseas with the child and not cause the child to be returned to Australia in a timely fashion.
Parental responsibility
It will be in the best interests of the child to make an order that the Father have sole parental responsibility for him. The child, in 2019 and 2020, has been in the primary care of the Father. The parties have significant problems communicating effectively when seeking to co-parent the child. There is significant conflict between them when they seek to do so. The Mother acts inconsistently in terms of making herself available to care for the child; for example, she travels to Country B making herself unavailable to care for the child. The Court has no confidence that the parties can reach agreement in a timely fashion, without conflict, in relation to making major decisions for the child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
All previous parenting orders shall be discharged.
The Father shall have sole parental responsibility for the child X born … 2011.
The child shall live with the Father.
The child shall spend time with the Mother as agreed in writing and at the Father's sole discretion.
That the Father shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the said child.
That pursuant to section 11 (1) and (2) of the Australian Passports Act 2005, these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian passport for the child X born … 2011.
That the Australian passport issued to the child shall be provided to the Father to hold on behalf of the child.
That the said child be permitted to travel outside the Commonwealth of Australia with the Father for a holiday during school holiday periods without prior notice to or permission of the Mother.
The Mother shall do all acts and things to return to the Father within seven (7) days the child's passport in her possession, and in the event she fails to do so, the Father is at liberty to cancel the passport with the Australian Passports Office.
That pursuant to section 68B the mother shall be restrained from attending on the school, or school events, or extra-curricular activities or health providers of the child whilst the child may be in attendance at such school, extracurricular activity or health provider, or approach within 100 meters of the residence of the child, save and except with the written consent of the father received by text message in advance.
That the Father shall forthwith provide to the child's school and health providers a copy of these Orders.
Direct the Independent Children’s Lawyer to notify the Mother, at her last known residential address, or by email, of today’s final parenting Orders, within seven days.
NOTATION:
(a)Pursuant to rule 16.05 of this Court’s Rules, the Court or a Registrar may vary or set aside an order made in the absence of a party. Any application by the mother to set aside the above final parenting orders shall be made within 14 days of being notified of such orders.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 13 August 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
-
Remedies
0
0
3