Christy & Young

Case [2022] FedCFamC1F 446

Federal Circuit and Family Court of Australia

(DIVISION 1)

Christy & Young [2022] FedCFamC1F 446

File number(s): PAC 5254 of 2019
Judgment of: HANNAM J
Date of judgment: 22 June 2022
Catchwords: FAMILY LAW – CHILDREN – Variation of interim parenting orders – Where final hearing was completed in November 2021 – Where judgment is currently reserved – Where an application to reopen proceedings was made by the father – Where a central issue at final hearing was the risk of harm posed by a man the mother was “dating” – Where the mother deposed to no longer being in a romantic relationship with this man – Where the mother was untruthful to the Court – Where the father deposes to the children reporting that the mother is continuing to see this man and that they have been exposed to and subjected to family violence perpetrated by him – Where it is not disputed that the mother is now pregnant– Where the father contends there is an unacceptable risk of harm in the mother’s home due to family violence – Where an oral application was made to vary the interim parenting arrangements – Where the Court is satisfied that if the mother remains in a relationship with this man there is an unacceptable risk of harm in her household if the children remain living with her – Where orders are made for the children to live with the father and spend limited time with the mother
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D
Cases cited:

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

Division: Division 1 First Instance
Number of paragraphs: 134
Date of hearing: 20 June 2022
Place: Parramatta
Solicitor for the Applicant: Bainbridge Legal
Solicitor for the Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

PAC 5254 of 2019

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

MR CHRISTY

Applicant
AND:

MS YOUNG

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

20 JUNE 2022

THE COURT ORDERS THAT:

1.All previous parenting orders in relation to the children are hereby suspended.

UNTIL 4PM ON 15 JULY 2022, THE COURT ORDERS THAT:

2.The father have sole parental responsibility for the children.

3.The children are to live with the father from after school today.

4.Commencing from Sunday 3 July the children are to spend time with the mother between 10am and 4pm each alternate Sunday with changeover for such time to occur at the McDonald’s Family Restaurant in Suburb D at the commencement and conclusion of time.

5.Only the father and such other members of his household who the father considers appropriate are permitted to collect the children from school.

6.Leave is granted to the ICL to provide these orders to school.

7.The mother is to provide all details of current prescriptions and medications for the children and the name of the children’s…

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Christy & Young [2022] FedCFamC1F 446
Case
[2022] FedCFamC1F 446
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CaseChat Overview and Summary

Christy & Young involved a dispute between the father, Mr. Christy, and the mother, Ms. Young, regarding the interim parenting arrangements for their two sons, aged two and a half and less than twelve months. The father applied for a variation of the interim parenting orders, contending that there was an unacceptable risk of harm to the children in the mother's household due to her relationship with a man named Mr. C, who had a history of family violence. The father's application was made pending the final day of the hearing scheduled for 15 July 2022. The Independent Children’s Lawyer supported the father’s application, while the mother opposed it.

The court needed to determine whether the relationship between the mother and Mr. C posed an unacceptable risk of harm to the children, as alleged by the father, and whether it was in the children's best interests to vary the interim parenting arrangements accordingly. The court considered the evidence presented, including the mother's shifting stance on her relationship with Mr. C and the father's allegations that the children had been exposed to and subjected to family violence by Mr. C.

The court concluded that if the mother was in an ongoing relationship with Mr. C, it raised an unacceptable risk of harm for the children. The evidence suggested that the older child had been subjected to family violence by Mr. C, which was a significant factor in the court's decision. The court was satisfied that the interim orders proposed by the father, which included the children living with him and spending limited time with the mother, were in the children's best interests. The court also noted that the mother's proposed time with the children could be destabilising and upsetting for them, given the negative impact of the father's family in the mother's household.

The court made interim orders suspending all previous parenting orders until 15 July 2022. The orders granted sole parental responsibility to the father and required the children to live with him while spending time with the mother between 10am and 4pm each alternate Sunday, with changeover at a specified location. The mother was directed to provide necessary medical information to the father. The orders were subject to review for minor errors or variations as per the relevant rules.

Orders

Orders of the court

PAC 5254 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CHRISTY

Applicant

AND:

MS YOUNG

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

20 JUNE 2022

THE COURT ORDERS THAT:

1. All previous parenting orders in relation to the children are hereby suspended.

UNTIL 4PM ON 15 JULY 2022, THE COURT ORDERS THAT:

2. The father have sole parental responsibility for the children.

3. The children are to live with the father from after school today.

4. Commencing from Sunday 3 July the children are to spend time with the mother between 10am and 4pm each alternate Sunday with changeover for such time to occur at the McDonald’s Family Restaurant in Suburb D at the commencement and conclusion of time.

5. Only the father and such other members of his household who the father considers appropriate are permitted to collect the children from school.

6. Leave is granted to the ICL to provide these orders to school.

7. The mother is to provide all details of current prescriptions and medications for the children and the name of the children’s treating general practitioner to the father’s solicitor prior to leaving Court today.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The issue at the heart of the reopened proceedings relates to a matter which the father contends gives rise to a serious risk of harm to the children in their current situation living with the mother. Given the seriousness and urgency of that issue, leave was given to the father through his legal representative to make an oral application for variation in the current interim arrangements for the children. The orders made, as sought by the father pending the final day of hearing on 15 July 2022, were supported by the Independent Children’s lawyer (“ICL”) and were opposed by the mother. Background The mother who is 32 and the father who is 30 began a relationship in late 2013 and commenced living together a short time later. They had two sons during the course of their short-lived relationship who were about two and a half and less than twelve months old respectively when the parties separated in 2017. The parties initially reached agreement about a parenting arrangement for the children in which the children lived with the mother and spent quite regular time with the father including overnights. From time to time the mother did not make the children available to the father for reasons that she considered justified. By May 2019 each of the parties had re-partnered and each party had concerns about the other parties’ new partner. Shortly after the father married in mid-May 2019, the mother again began withholding the children from him, citing various safety concerns said to be posed by his wife. In particular, the mother alleges that in April 2019 the older child had made complaints to her about being sexually abused by the father’s wife. Even though the allegations of sexual abuse were investigated by a joint police, health and Department of Communities and Justice team and not found to be substantiated, the mother continued to maintain that the father’s wife had sexually abused both children and posed an unacceptable risk of harm to them on this basis. There was a ten-month period from May 2019 in which the children spent no time with the father. In October 2019 the father commenced parenting proceedings in the Federal Circuit Court as it was then known. Due to the allegation of sexual abuse, the proceedings were transferred to this Court and formed part of the Magellan Protocol, a fast-track case management program dealing with allegations of serious physical or sexual abuse. In February 2020 the parties came to an agreement which was formalised in orders made with their consent for the children to spend time with the father supervised by a supervision service. This time commenced in March 2020. When seen by a Family Consultant in August 2020 for the purposes of a Family Report, the mother maintained the position that the father’s wife posed an unacceptable risk of harm to the children arising from sexual abuse. The father was mainly concerned about an alleged risk posed by the mother arising from her actions, which he contended amounted to undermining the children’s relationship with him and promoting a false narrative about dangers posed by himself and his wife.

Evidence

Evidence Before The Court

On 19 November 2021 at the completion of evidence, final oral submissions were made on behalf of each of the parties before judgment was reserved. Evidence and findings concerning Mr C at the final hearing The mother’s position in relation to her relationship with Mr C and the risk, if any, that he poses to the children changed in the course of the proceedings. Her trial affidavit is silent in relation to Mr C and she did not rely on any affidavit sworn by him in the proceedings. Although the question of this relationship was first raised by the father in the interviews with the family consultant for the Family Report, at that stage the father did not know Mr C’s full name or anything further about the current state of the relationship. In summary, when the hearing commenced Mr C was not a proposed witness but further information came to light about him and the role he may play in the mother’s household in the course of the proceedings. Just prior to being cross-examined the mother sought to rely on a further affidavit in which she deposed to having been in a relationship with Mr C for a couple of months. During cross-examination various concerning matters about Mr C especially in relation to his history of family violence and interactions with the children came to light. When the final hearing resumed part-heard in November 2021 the mother deposed to no longer being in a relationship with Mr C and it was her case that the presence of Mr C in her life, however described, did not give rise to an unacceptable risk of harm to the children in her care. When final submissions were made on her behalf the mother agreed to the restraint contained in the ICL’s proposed orders that the children not be brought into contact with Mr C. The mother’s counsel accepted on her behalf that Mr C did pose an unacceptable risk of harm to the children. The father contended and the ICL agreed, that the Court should find that Mr C does pose an unacceptable risk of harm to the children arising from exposure to family violence should the children continue to live with the mother. Such a finding if made grounds the ICL’s proposal, adopted by the father including in particular an order that the children move to live with the father. For the foregoing reasons it is necessary to make findings about the nature of the mother’s relationship with Mr C and whether that relationship gives rise to an unacceptable risk of harm to the children arising from exposure to family violence if the children were to live with her, both for the purposes of the final judgment and this application.The evidence concerning Mr C When assessed by the family consultant the father reported that during his relationship with the mother, Mr C was an acquaintance of the mother and that the father was lead to believe Mr C “was not a nice person”. At the time of the assessment, the father reported that he did not have much knowledge of Mr C and had no specific concerns regarding the impact of this relationship on the children.

Decision

Reasons for decision

I accept the submission of the ICL that the more expansive time with the children sought by the mother if they were to move live with the father could be destabilising and upsetting for the children. This is particularly so, when there was significant evidence given in the proceedings about the negative view of the father and his family members in the mother’s household and the detrimental impact this had had upon the children and their relationships with the father. Conclusion As explained, in making the interim orders I had regard to each of the parties’ submissions at the completion of the evidence, the matters about which I am able to make findings and my assessment of risk in relation to those matters which have yet to be tested. I am satisfied that if the mother is an ongoing relationship with Mr C, for all of the reasons given, this raises an unacceptable risk of harm for the children should they remain living with the her. I consider that there is a real possibility that the mother was in such a relationship when the judgment was reserved in November 2021 and if the father’s new evidence is accepted I will be satisfied as to that matter. The additional evidence if accepted also raises a greater magnitude of risk for the children for it includes an allegation that the older child has been subjected to family violence by Mr C as well as being exposed to it. I am not satisfied that the time the mother proposes for the children to spend with her if they move to live with the father is proper or in their best interests. Having regard to all of the foregoing, I was satisfied that it was in the best interests of the children for orders to be made as sought by the father and supported by the ICL.

Ratio Decidendi

Legal Principle Established

In determining that the interim orders proposed by the father and supported by the ICL were proper having regard to the best interests of the children as the paramount consideration, I had regard to the following matters under s 60CC of the Act.The primary considerations – s 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents;(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. The interim orders sought by the father provide for the children’s meaningful relationships with both parents to be fostered and respond to the need to protect the children from harm arising from being subjected to and exposed to family violence, being the only domain of harm of the type in envisaged under this consideration in these proceedings. So far as the children’s meaningful relationships with both parents are concerned, although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[2] The orders made which provide for the children to spend six hours of time with the mother each alternate weekend amount to an arrangement that will foster the children’s meaningful relationships with her.[2] McCall & Clark (2009) FLC 93-405; Mazorski & Albright [2007] FamCA 520 at [26]. Throughout the entire proceedings, the mother had pursued a case that the father and/or his wife posed a risk of harm to the children. However, in final submissions made on her behalf it was indicated that she did not seek a finding that there was any unacceptable risk of harm in the father’s household and she proposed orders that would see the children spend substantial and significant time with the father and share parental responsibility for the children with him. It was the father’s case throughout most of the proceedings and was certainly made very clear by the close of the evidence, that he considered that Mr C posed an unacceptable risk of harm to the children should the mother continue to be in a relationship or rekindle her relationship with him, arising from the children’s exposure to family violence, a matter with which the ICL agreed. The father’s concerns which prompted this application for a variation in interim arrangements escalated on the basis of the additional evidence contained in his recent affidavit. That evidence is to the effect that the children have in recent months been exposed to aggressive and abusive behaviour from Mr C directed to the mother which had caused the children to become fearful and anxious and in the case of the older child, he had also been subjected to family violence at the hands of Mr C.