Christy & Young (No 2)

Case [2022] FedCFamC1F 519

FEDERAL CIRCUIT AND Family Court of Australia
(DIVISION 1)

Christy & Young (No 2) [2022] FedCFamC1F 519

File number(s): PAC 5254 of 2019
Judgment of: HANNAM J
Date of judgment: 21 July 2022
Catchwords: FAMILY LAW – CHILDREN – Final parenting – Where expert evidence is given about the increased risk posed by a person who has perpetrated family violence in the past – Consideration of harms which may be experienced by children when their parent is in a relationship with a person who poses a risk of family violence – Where a proposal for limited time with a parent is justified where that parent lacks insight into the potential risks posed to their children by their partner – Where undermining a child’s relationship with a parent is found to constitute emotional abuse – Where evidence adduced in re-opened proceedings amplifies Court’s concerns and strengthens previous findings – Where presumption of equal shared parental responsibility is rebutted by evidence of a high level of mistrust between the parents and a parent’s inability to conduct themselves in a child-focussed manner.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 61B, 61C, 61DA, 65D, 65DAC
Cases cited:

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Christy & Young [2022] FedCFamC1F 446
Number of paragraphs: 398
Date of hearing: 21-23 September, 18-19 November 2021, 15 July 2022
Place: Parramatta
Solicitor for the Applicant: Bainbridge Legal
Counsel for the Respondent: Mr Schroder (21-23 September and 18-19 November 2021)
Mr Cairns (15 July 2022)
Solicitor for the Respondent: Pannu Lawyers
Counsel for the Independent Children’s Lawyer: Ms De Vere
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:

21 july 2022

THE COURT ORDERS THAT:

1.All previous orders in relation to the children X born in 2014 and Y born in 2016 (“the children”) are discharged.

2.The father has sole parental responsibility for the children provided that he consults with the mother about decisions to be made in exercise of his sole parental responsibility as follows:-

(a)The father will advise the mother in writing of the decision to be made and all related information;

(b)Within fourteen (14) days the mother will respond to the father in writing providing her views and input which the father will genuinely consider;

(c)The father will make the decision and provide the mother advice in writing of the decision and the reasoning behind the decision.

3.The children are to live with the father.

4.The children are to spend time with the mother between 10am and 4pm each alternate Sunday.

5.During the Christmas holiday period, commencing Christmas 2022 and thereafter, the children are to spend time with the mother from 10am and 4pm on Christmas Eve in years ending in…

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AGLC
Christy & Young (No 2) [2022] FedCFamC1F 519
Case
[2022] FedCFamC1F 519
Decision Date

CaseChat Overview and Summary

Christy & Young (No 2) involved a dispute between parents over the parenting arrangements for their two children following their separation. The mother and father had been in a relationship since 2013 and had two sons, aged seven and six. The parents had initially agreed to a parenting arrangement where the children lived with the mother and spent three nights per fortnight with the father. Following the separation, there were disputes over the father's mental health and alleged drug use, which led to the mother suspending the children's time with the father. The case involved complex issues regarding the allocation of parental responsibility and the best interests of the children. The father sought sole parental responsibility, while the mother proposed equal shared parental responsibility. The court had to determine whether the presumption of equal shared parental responsibility could be rebutted and consider the best interests of the children, including their need for meaningful relationships with both parents and protection from harm.

The court examined the evidence and found that both parents accepted the children benefited from meaningful relationships with each parent. The court considered the primary considerations set out in s 60CC of the Act, including the benefit to the children of having a meaningful relationship with both parents and the need to protect them from harm. The court noted that the mother no longer contended there was a risk of sexual abuse in the father's household, allowing for the children to spend time with the father without restrictions. The court found that both proposed arrangements provided for the children to have meaningful relationships with both parents and regular time with the other, which was in their best interests.

The court concluded that the best interests of the children were met by ensuring they had the benefit of both parents having meaningful involvement in their lives to the maximum extent consistent with their best interests. The court did not find it necessary to alter the statutory conferral of joint parental responsibility and found that the proposed parenting orders were in the best interests of the children. The final orders included provisions for the children to live with the mother and spend regular time with the father, with specific arrangements for holiday and overnight time.

In summary, the court decided that the proposed parenting orders, which provided for the children to live with the mother and spend regular time with the father, were in the best interests of the children. The court found that both parents could provide meaningful relationships and protection for the children and that the proposed arrangements met the primary considerations set out in s 60CC of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The question for me to determine is which orders are proper having regard to the children’s best interests as the paramount consideration.background On 22 June 2022, I delivered a Judgment (“the June 2022 Judgment”)[1] which explained my reasons for reopening the proceedings which were at that stage adjourned pending reserved judgment and for changing the children’s interim parenting arrangements. These Reasons incorporate some parts of that Judgment and are to be read with it.[1] Christy & Young [2022] FedCFamC1F 446. The mother is 32 and the father is 30. They began a relationship in late 2013 and commenced living together a short time later. In 2014 the parties’ older son now aged seven (“the older child”) was born. In 2016, their younger son, now six years old (“the younger child”) was born. There is a dispute between the parties about the extent to which each was involved in the parenting of the children when their relationship was intact. It is not in dispute, however, that following separation in early 2017 the parties agreed to a parenting arrangement that involved the children living with the mother and spending three nights per fortnight with the father (who had moved to live with the paternal grandparents). This informal care arrangement was followed until about March 2017 when the mother unilaterally decided to suspend the children’s time with the father for two months due to her concerns about his mental health and alleged drug use. The parties subsequently reached agreement which was formalised into two parenting plans. The first parenting plan was followed by the parties for almost a year until February 2018 when the mother once again refused to facilitate any contact between the children and the father. By this stage, both parties had re-partnered. The parties then agreed to a second parenting plan. In March 2019, the mother, her then-partner (“the mother’s former partner”) and the maternal grandparents went on a holiday for five days and left the children in the father’s care. It is the father’s case that when he was caring for the children at this time, the older child reported first to his partner and then to him that the mother’s former partner had choked him. The younger child later reported to the father that the mother’s former partner hurt his back. The father reported the alleged physical abuse to police and the Helpline at the Department then known as Family and Community Services (“the Department”), but according to Departmental records there was no capacity for this complaint to be investigated. Subsequently, the father and his partner raised their concerns about the children’s alleged disclosures with the mother, but she denied any abuse or wrongdoing by her former partner towards her or the children. From about this time, it is the mother’s case that she observed both children display aggressive and sexualised behaviour and that each of them became increasingly resistant to spending time with the father.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am unable to assess whether either of the proposed suite of orders are more likely to lead to the institution of further proceedings in relation to the children and do not consider this a matter of significance in these proceedings. CONCLUSIONParental responsibility Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. In Goode & Goode[19] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. [19] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). The ICL seeks an order that the father have sole parental responsibility for the children combined with an additional order in relation to consulting with the mother in exercise of that parental responsibility. The mother proposes equal shared parental responsibility (in accordance with the presumption), while the father maintains the presumption has been rebutted and that it would not be in the children’s best interests for the parents to share parental responsibility for them. He maintains in accordance with the ICL’s initial final proposal that he hold sole parental responsibility. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father and ICL must mean that the father would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.

Ratio Decidendi

Legal Principle Established

I indicated in the course of final submissions on 15 July 2022 that having regard to the events following November 2021 (most of which were not in dispute) and my findings in the June 2022 Judgment, I no longer considered the father’s original proposal as actively under consideration in resolution of the dispute.Best Interests Considerations Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests. The primary considerations (under s 60CC(2)) are:-(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Pursuant to s 60CC(2A), I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having meaningful relationships with both parents. Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court has approved the interpretation that the word “meaningful” when used in the context of “meaningful relationship” is synonymous with a relationship that is “significant” “important” or “of consequence”.[15] [15] McCall & Clark (2009) FLC 93-405 approving the interpretation of the phrase by Brown J in Mazorski & Albright (2007) 37 Fam LR 518. The word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the court to craft orders to support an optimal relationship.[16] Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).[16] Godfrey & Sanders [2007] FamCA 102 at 36. Each of the proposals provide for the children to live with one parent and spend regular time with the other which, if made, would foster the children’s meaningful relationships with both parents. Both parents and the ICL must be taken as accepting that the children do receive a benefit from having a meaningful relationship with each of the parents. Having regard to all of the evidence, including the observations of the children with both parents and the pattern of care throughout their lives, I am satisfied that they do receive a benefit from having such relationships with both parents. The second of the primary considerations, being the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, looms large in these proceedings. In particular, it had been the mother’s contention from the commencement of the proceedings in 2019 and up until final submissions made on her behalf in November 2021 that there was a need to protect the children from harm from being subjected to sexual abuse in the father’s household. It had been her case that it was the father’s wife who posed the risk of such abuse and from whom the children required protection. In the course of final submissions, it became apparent that the mother no longer contends that such a risk is present in these proceedings and the orders proposed by her provide for fulsome overnight time between the children and their father including overnights and holiday time in his household without requiring that the father’s wife not come into contact with the children.