Federal Circuit and Family Court of Australia
(DIVISION 1)
Crestin & Algar (No 2) [2022] FedCFamC1F 656
File number(s): PAC 2862 of 2018 Judgment of: HANNAM J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW - Parenting - Where Court considers competing proposals for the parenting arrangements of two half-brothers - Where expert considers mother’s opposition to older child’s relationship with father is detrimental to that child’s best interests - Where Court accepts expert evidence about the risks and potential harms to children who lose significant attachment figures in their lives - Where other weighty matters in the Court’s determination include the likely effect of change in circumstances and the expert’s assessment of profound differences in each parent’s households and their capacity to provide for the children’s developmental needs - Where in the circumstances the parenting arrangements sought by the father and ICL for both children are more consistent with expert’s evidence and recommendations - Where presumption of equal shared parental responsibility is also rebutted due to ongoing parental discord - Orders made in terms that are a hybrid of the father and ICL’s proposals. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC Cases cited: Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 309 Date of hearing: 17 – 19 January 2021, 14 April 2022 Place: Parramatta Counsel for the Applicant Mr Lloyd SC Solicitor for the Applicant Bilias & Associates Counsel for the First Respondent Ms Gillies SC Solicitor for the First Respondent Pryor Tzannes & Wallis Solicitor for the Second Respondent Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer Ms Hayward Solicitor for the Independent Children’s Lawyer Adams & Partners Lawyers ORDERS
PAC 2862 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRESTIN
Applicant
AND: MR ALGAR
First Respondent
MR HOOKE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS THAT:
Parental responsibility
1.Mr Algar (“the father”) have sole parental responsibility for child X, born 2015 (“the younger child”).
2.The father is to inform Ms Crestin (“the mother”) of all decisions made by him about major long-term issues in relation to the younger child within seven (7) days of such decision being made.
3.The notice to be provided by the father to the mother pursuant to Order (2) above be in writing by email to the mother’s email address, currently …@hotmail.com.
4.The father is not required to inform the mother of decisions made by him in relation to the younger child that are not major long-term issues.
5.The mother have sole parental responsibility for child Y, born 2013 (“the older child”).
Living arrangements
6.The younger child is to live with the father.
7.The older child is to live with the mother.
Spend-time arrangements
8.The younger child is to spend time with the…
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- AGLC
- Crestin & Algar (No 2) [2022] FedCFamC1F 656
- Case
- [2022] FedCFamC1F 656
- Decision Date
CaseChat Overview and Summary
The case of Crestin & Algar (No 2) involved a dispute between the mother and father regarding the proper parenting arrangements for their two children, a younger child and an older child with a disability. The court was tasked with determining the best interests of the children, considering various factors, including the parents' involvement in decision-making and their efforts to maintain a relationship with the children. The mother had moved away, and the father had retained the children, leading to a contentious relationship between the parents. The father had been actively involved in decision-making and maintaining a relationship with the younger child but had not engaged with the older child, who had a disability.
The key legal issues before the court were whether the father had assaulted the older child, the reliability of the evidence presented, and the best interests of the children in terms of their care, welfare, and development. The court had to weigh the evidence, including expert reports, and assess the parents' efforts to maintain a relationship with the children and their involvement in decision-making. The court also considered the impact of the parents' relationship on the children and the need for stability and continuity in their lives.
In reaching its decision, the court found that there was insufficient evidence to conclude that the father had assaulted the older child. The court also found that the father had been actively involved in decision-making and maintaining a relationship with the younger child, while the mother had moved away and taken the children with her. The court considered the father's unilateral retention of the children and cutting off contact with the mother as a negative factor, but also noted that the parties had reached an agreement regarding the younger child's parenting arrangement. The court emphasised the importance of both parents being involved in the children's lives and the need for stability and continuity, particularly for the older child with a disability.
Ultimately, the court determined that the best interests of the children were served by the father's proposed parenting arrangements, which provided for shared care of the younger child and for the older child to live with the mother but have supervised contact with the father. The court made orders consistent with the father's proposals, recognising the importance of both parents being involved in the children's lives and the need for stability and continuity, particularly for the older child with a disability.
The key legal issues before the court were whether the father had assaulted the older child, the reliability of the evidence presented, and the best interests of the children in terms of their care, welfare, and development. The court had to weigh the evidence, including expert reports, and assess the parents' efforts to maintain a relationship with the children and their involvement in decision-making. The court also considered the impact of the parents' relationship on the children and the need for stability and continuity in their lives.
In reaching its decision, the court found that there was insufficient evidence to conclude that the father had assaulted the older child. The court also found that the father had been actively involved in decision-making and maintaining a relationship with the younger child, while the mother had moved away and taken the children with her. The court considered the father's unilateral retention of the children and cutting off contact with the mother as a negative factor, but also noted that the parties had reached an agreement regarding the younger child's parenting arrangement. The court emphasised the importance of both parents being involved in the children's lives and the need for stability and continuity, particularly for the older child with a disability.
Ultimately, the court determined that the best interests of the children were served by the father's proposed parenting arrangements, which provided for shared care of the younger child and for the older child to live with the mother but have supervised contact with the father. The court made orders consistent with the father's proposals, recognising the importance of both parents being involved in the children's lives and the need for stability and continuity, particularly for the older child with a disability.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is which of the proposed parenting arrangements is proper having regard to the best interests of the children as the paramount consideration.Background The mother who is aged 37 had two children (“the mother’s older children”) to different fathers prior to commencing a relationship with the second respondent in 2011. The mother and second respondent separated in early 2013 when she became pregnant with the older child. In 2013 the older child was born extremely prematurely and was resuscitated at birth. Shortly after his birth, the older child was diagnosed with a disability. He received specialist treatment which has been ongoing throughout his life. It is the father’s contention that the mother’s older children and the older child in these proceedings were exposed to an unstable family environment in the mother’s care including exposure to significant parental conflict and family violence especially at the hands of the older child’s biological father, the second respondent in these proceedings. The mother and the father, who is aged 46, met and commenced a relationship in early 2015. The parties’ only child (the younger child in these proceedings) was also born premature in 2015 and remained in hospital until early 2016. At the time of the mother’s discharge from hospital the parties and one of the mother’s older children (“the mother’s other child”) started living together with the children in the father’s rented home in the suburbs of Sydney. Upon his discharge from hospital, the younger child also formed part of the parents’ household. From at least this time, the second respondent had no involvement in the older child’s life, and the father effectively adopted the role of “father” to the children. The father contends that from around the beginning of 2016 the mother began engaging in excessive alcohol use. He also contends that the mother was taking medication to address her depression and anxiety at the time. The mother disputes the father’s evidence concerning the extent of her alcohol consumption. From around mid-2016, both parents were employed and the children attended childcare four days per week. It appears to be common ground that from around late 2016 the parties began experiencing relationship difficulties, which the father contends were related to the mother’s ongoing alcohol misuse. These difficulties escalated and in mid-2017 the father alleges that the mother punched him in the presence of the children. There was a further incident in late 2017 in which the father was assaulted by the mother. In May 2018 the parties’ ended their relationship but both remained living in the same home for about a month. The father offered to assist the mother financially so that she could remain living nearby and the children and the mother’s other child could continue attending childcare and schools in which they were enrolled. In June 2018 the mother moved with the children and her other child to another part of Sydney, approximately 44 kilometres from the father’s home, where she remains living. The mother alleges that this move was precipitated by her becoming aware that the father had recorded her movements without her consent, a matter which the father disputes.
Evidence
Evidence Before The Court
In summary, the only evidence that the father assaulted the older child is the complaint made by the older child himself. In circumstances where there is a lack of clarity about what the child alleges, this child has made similar complaints which have been withdrawn in the past and having regard to each of the other foregoing matters that I consider affect the reliability of that account, together with the context in which the allegation arose and the actions of the mother since the allegation was made, I am not satisfied as to its reliability. The father gives sworn evidence that he did not assault the child which was not challenged under cross-examination. In the foregoing circumstances I am not satisfied to the requisite standard that the father assaulted the older child on any occasion. the expert evidenceThe Expert’s report - May 2019 The expert, a child, family and adult psychiatrist, interviewed the parties and family members for the purposes of preparing a report over three days in April 2019. When interviewed, the mother’s other child (a boy then aged 11) and the older child then aged six, lived with the mother full time. The older child had at that time recently rekindled his relationship his father (the second respondent) and was then spending every Saturday with the second respondent and this child’s paternal grandmother with the occasional sleepover. The younger child was living in a roughly equal shared care arrangement between the mother and the father. The mother told the expert that until six weeks prior to the assessment she had had a really good relationship with the father and had no issues of concern. She reported then-current difficulties in co-parenting the younger child due to a lack of communication between herself and the father. At that time, the orders sought by the mother were along similar lines to her proposal at final hearing that the younger child live with her and spend time with the father each alternate weekend and for half of school holidays. She opposed the older child having any contact with the father. The expert records that the mother reported that all of her children had been born prematurely which she related to her developmental exposure to sexual abuse which she understood had caused cervical incompetence. Although she reported a number of physical challenges for younger child associated with his prematurity, the mother described this child when interviewed as a happy little boy who had not demonstrated other risks of prematurity except for some communication difficulties. The mother reported that the older child who was born three months premature had many significant physical difficulties as a result of his prematurity. This child had required numerous medical and allied health interventions throughout his life. At the time of the assessment he was described by the mother as a very intelligent and switched on child who was physically rather than mentally disabled. It is recorded by the expert that when asked about her mental health, the mother readily identified herself to have suffered from post-traumatic stress disorder (“PTSD”) with flashbacks to her childhood. Although the expert informed the mother that it was not necessary that she provide an account of her childhood trauma if she did not wish, the mother did provide that account in a distressed state. The mother reported being sexually assaulted multiple times a week by her mother’s brother between the ages of two and 10 and described being locked in her room for the entirety of her childhood and being raised without love affection or trust. She reported that her mother, a single parent, had been sadistic and physically abusive and described that she had spent her entire life looking for love and to feel safe which she understood contributed to her unstable relationship history.
Decision
Reasons for decision
All of the forgoing matters favour the proposals of the father and ICL over the proposal of the mother.Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the childExtent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child From the time the parties separated, the father has persistently sought to be involved in decision-making in relation to the children and to spend time and communicate with them. I am also satisfied that he offered to assist the mother financially at around the time of separation in an effort to have her remain living in the area where the family had been living prior to separation so that he could continue to be involved in the children’s lives. It is most unfortunate to say the least that when the father was not able to achieve his goal in this regard and the mother moved some distance away taking the children with her, that he then withheld the children from the mother, unilaterally retained them in his care and cut off contact from the mother. The expert describes this as being an action which set off the “tragic course of events” that followed. Fortunately for the younger child, despite the parties’ extremely acrimonious relationship following separation, they were able to reach agreement about a parenting arrangement which ensured that this child’s relationship with each of his parents was maintained and the parties were both able to play a meaningful role in this child’s life as envisaged by this consideration. Submissions made on behalf of the mother in relation to these matters are curious. The father’s efforts to be involved in decision-making, spending time and communicating with the younger child including through his proposals for final orders (that are consistent with the expert’s recommendations) are described as the father’s wish to dominate the younger child’s time with him. Elsewhere, it is submitted that the father does not have a relationship with the older child and that his interest in this child is only collateral to his efforts to be “the permanent parent” for the younger child. The matters in these subsections are both directed at the ‘parents’ of children for whom parenting orders are sought. It is trite to say that the father of the older child has effectively declined to take any opportunity to participate in long-term decision-making regarding this child or to spend time or communicate with him. He has failed to fulfil any obligations to maintain this child. These considerations which are directed at parents may be considered with respect to the father even though he is not a parent to the older child through the application of s 60CC(3)(m), as I consider the extent to which the father has sought to be involved in the older child’s life in this manner as a relevant fact or circumstance in relation to the best interests of this child.
Ratio Decidendi
Legal Principle Established
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