CHURCHILL & WILEMAN (No.2) - [2016] FCCA 107

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHURCHILL & WILEMAN (No.2)

[2016] FCCA 107

Catchwords:
FAMILY LAW – Parenting – whether an order should be made for a father to spend time with a child aged 4 – where the child has spent virtually no time with the father since he was 8 months old – mother seeking an order for no time and no communication – father seeking an order for some limited Skype communication and for some limited supervised time once he undergoes twelve months of therapy in relation to family violence, anger management and alcohol abuse.

FAMILY LAW – Where the mother alleges that during the parties’ short relationship the father perpetrated serious, chronic and on occasion terrifying family violence – where the father has been convicted of some offences committed against the mother and has made some limited admissions about perpetrating violence but denies most of the mother’s allegations, minimises what occurred on the occasions which led to his convictions and claims that the mother’s emotional abuse of him caused him to snap – where the court is satisfied that the father perpetrated extensive and severe family violence during the relationship as alleged by the mother - where there is compelling evidence that the father was also violent to a previous domestic partner.

FAMILY LAW – Where the child is displaying autistic-like symptoms – where the child’s paediatrician believes that the child has suffered Developmental Trauma as a result of exposure to family violence – issues of whether the child is likely to be re-traumatised if he sees the father, the impact on the mother of making an order for time and the implications of the father minimising or denying his responsibility for violence considered.

FAMILY LAW – Whether an order should be made requiring the mother to facilitate some time and communication between the child and the paternal grandparents - where the paternal grandparents support the father and accept his version of events.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:
Churchill & Wileman [2014] FCCA 1047

Applicant:

MR CHURCHILL

Respondent:

MS WILEMAN

File Number:

NCC 2771 of 2013

Judgment of:

Judge Terry

Hearing dates:

13, 14, 15, 16, 17 July 2015

Date of Last Submission:

17 July 2015

Delivered at:

Newcastle

Delivered on:

9 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

Rice More & Gibson

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Bridge Street Lawyers

Counsel for the Independent Children’s Lawyer:

Ms McMahon

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

The mother shall have sole parental responsibility for the child X born (omitted) 2011.
The child shall live with the mother.
The child shall spend no time with and have no communication with the father.

NOTATION:

It is the intention of the mother to relocate to the (omitted) area for the purpose of enrolling X with the Berry Street Clinic in (omitted) and the ASPECT Autism Australia School.

IT IS NOTED that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CHURCHILL & WILEMAN (No.2)

Details

AGLC: Churchill and Wileman (No.2) [2016] FCCA 107
Case: [2016] FCCA 107
Decision Date: 9 January 2016

CaseChat Overview and Summary

This case concerned parenting orders for a four-year-old child, X. The mother sought orders for X to spend no time with and have no communication with the father, while the father sought limited Skype communication and supervised time after completing twelve months of therapy for family violence, anger management, and alcohol abuse. The child had had virtually no contact with the father since he was eight months old.

The court was required to determine whether to make orders for the father to spend time with X, considering the benefit of a meaningful relationship with both parents against the need to protect X from harm. Specifically, the court had to assess the risk of X being re-traumatised if he saw the father, the impact of any orders on the mother, and the implications of the father minimising or denying his responsibility for past family violence. The court also considered whether to order the mother to facilitate contact between X and the paternal grandparents, who supported the father's version of events.

In its reasoning, the court applied section 60CC(2) of the Family Law Act 1975 (Cth), which mandates giving greater weight to the need to protect a child from harm. The court found that it could not be satisfied that X would be safe from abuse or family violence in the father's unsupervised care, given the father's refusal to admit the extent of his violence, his denial of responsibility, and his approval of smacking as discipline. The court concluded there was an unacceptable risk of X being abused or exposed to family violence, which would cause profound damage. While the father sought limited supervised contact and communication, the court also considered expert concerns that X might be re-traumatised by seeing the father. The court questioned the utility of supervised time if it was unlikely to ever become unsupervised, noting X did not remember the father and the father showed no current indication of productively engaging with therapy.

The court ordered that the mother have sole parental responsibility for X, that X live with the mother, and that X spend no time with and have no communication with the father.

Orders

Orders of the court

The mother shall have sole parental responsibility for the child X born (omitted) 2011.

The child shall live with the mother.

The child shall spend no time with and have no communication with the father.

NOTATION:

It is the intention of the mother to relocate to the (omitted) area for the purpose of enrolling X with the Berry Street Clinic in (omitted) and the ASPECT Autism Australia School.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I must now return to the primary considerations in s. 60CC(2) which are as follows: 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. S.60CC(2A) provides that in applying these considerations the court is to give greater weight to the considerations in paragraph (2)(b). I could not be satisfied that X would be safe from being subjected to or exposed to abuse or family violence in the father’s unsupervised care at present. His refusal to admit the extent of his violence to the mother or his violence in a previous relationship, his refusal to accept responsibility for his violence, his smacking of C, his approval of smacking as a form of discipline and the fact that X has behavioural issues which may on occasions challenge the coping capacity of the best of parents all lead to that conclusion. There is an unacceptable risk that if X spent unsupervised time with the father he would either be abused by the father or exposed to family violence committed against others, and it is hard to overstate the profound damage that even one such incident would be likely to cause to X. The father in the end did not seek unsupervised time and he did not even seek extensive supervised time. He sought occasional supervised time and occasional Skype communication and although the father’s counsel did not specifically refer to it during his final submissions the peg on which the father no doubt hoped to hang his hat was Dr A’s recommendation that:Should the court consider the risk of harm to X is not appreciable if there is irregular and supervised contact, then X should spend time with the father at a formal contact centre four times per year for the purpose of identifying information.[24][24] Page 49 of the Expert Report. The first issue to consider here is that while supervised time would protect X from abuse or family violence because a professional supervisor would not let that occur, Dr V expressed concern that X might be re-traumatised if he saw the father, in other words if he would suffer psychological harm which had its foundation in the earlier family violence. During cross-examination however Dr A also talked about the risks of X being re-traumatised if he spent time with the father and queried whether any time spent by the father with X would be more advantageous to the father than to X. The second issue is that the utility of ordering supervised time has to be questioned if there is no present indication that the time can ever safely become unsupervised. X does not remember the father and this is not a case for example where some supervised time might be of benefit to prevent a parent suddenly disappearing completely from the child’s life. The father’s counsel did not suggest that the father hoped for unsupervised in the longer term, but he proposed orders that the father do 12 months of therapy to address anger management, family violence and alcohol abuse issues and this has the appearance of the father hoping to fit himself in the future to be a person who should be more extensively involved in X’s life. However as mentioned earlier there is no sign that the father is likely to productively engage with counselling at this point in his life and therefore no sign that unsupervised time is likely to become appropriate.