FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edinger & Duy (No 2) [2023] FedCFamC1F 450
File number: PAC 4543 of 2020 Judgment of: HANNAM J Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Where the mother alleged that the father physically and sexually abused the child – Where the allegations have been extensively investigated by police and the Department – Where the mother continues to report the child’s complaints – Where each party contends that the other have perpetrated family violence – Where the father contends the Court cannot find that one party is the perpetrator of family violence – Where the father and ICL contend that the mother poses an unacceptable risk of psychological harm to the child – Where the father and ICL seek orders that the child live with the father and spend supervised time with the mother – Where the mother seeks that the child spend no time with the father – Where the expert opines that the mother’s proposal is the least detrimental parenting arrangement – Where the father is found to have perpetrated family violence – Where gaslighting is found to meet the definition of family violence – Where it is found that the mother held a genuine belief that the child has been abused – Where orders are made as sought by the mother. Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 60CG, 65D Cases cited: Amador & Amador [2009] FamCAFC 196
Goode & Goode (2006) FLC 93-286
Fitzwater v Fitzwater (2019) 60 Fam LR 212
In the Marriage of Reihana (1980) 6 Fam LR 134
In the Marriage of Schenck (1981) 7 Fam LR 170
Isles & Nelissen [2022] FedCFamC1A 97
M & M (1988) 166 CLR 69
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93 – 405; 41 Fam LR 483
Slynt & Slynt [2017] FamCA 82
Division: Division 1 First Instance Number of paragraphs: 553 Date of last submissions: 12 April 2023 Date of hearing: 27–28 February 2023, 1–3 March 2023 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Robertson Saxton Osborne Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 4543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDINGER
Applicant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
2 JUNE 2023
THE COURT ORDERS THAT:
1.Ms Duy (“the Mother”) shall have sole parental responsibility for X born … 2015 (“the Child”).
2.The Child shall live with the Mother.
3.The Child shall spend no time with or communicate with Mr Edinger (“the Father”).
4.The mother is restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the father or members of the paternal family or permitting the child to remain in the presence…
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- AGLC
- Edinger & Duy (No 2) [2023] FedCFamC1F 450
- Case
- [2023] FedCFamC1F 450
- Decision Date
CaseChat Overview and Summary
The case of Edinger & Duy (No 2) involved a dispute between the parents of a child concerning their child’s best interests, parental responsibility, and the appropriate parenting arrangements. The father, an Australian national, and the mother, who was born and raised in an Asian country, had met through work. They commenced their relationship in 2010, during which the father was still married. The child was born in February 2015 and the parents married in 2012. The primary issues before the court were the determination of parental responsibility, the making of parenting orders that would be in the child's best interests, and the consideration of family violence allegations made by both parents.
The court was required to decide whether the presumption of equal shared parental responsibility applied and, if not, which parent should be allocated sole parental responsibility. The court also had to determine the appropriate parenting arrangement for the child, considering the various proposals and the child's best interests. Furthermore, the court had to assess the credibility of the allegations of family violence made by both parents and the implications of those allegations for the child's welfare.
The court found that the presumption of equal shared parental responsibility did not apply due to the father's engagement in family violence. Given the parents' inability to make joint decisions and the expert's recommendation that parental responsibility be held by the parent with whom the child would reside, the court was satisfied that an order granting sole parental responsibility to the mother was in the child's best interests. The court also concluded that the parenting arrangement proposed by the mother was the least detrimental to the child. Consequently, the court made orders consistent with the mother's proposal, with slight amendments to enhance clarity and enforceability. These orders included allocating sole parental responsibility to the mother and restraining the mother from engaging in conduct detrimental to the child's relationship with the father.
The court's final orders included the allocation of sole parental responsibility to the mother, specific provisions regarding the child's residence and contact with the father, and restraints on the mother's conduct to protect the child's relationship with the father. The court emphasised the paramount consideration of the child's best interests in making these orders.
The court was required to decide whether the presumption of equal shared parental responsibility applied and, if not, which parent should be allocated sole parental responsibility. The court also had to determine the appropriate parenting arrangement for the child, considering the various proposals and the child's best interests. Furthermore, the court had to assess the credibility of the allegations of family violence made by both parents and the implications of those allegations for the child's welfare.
The court found that the presumption of equal shared parental responsibility did not apply due to the father's engagement in family violence. Given the parents' inability to make joint decisions and the expert's recommendation that parental responsibility be held by the parent with whom the child would reside, the court was satisfied that an order granting sole parental responsibility to the mother was in the child's best interests. The court also concluded that the parenting arrangement proposed by the mother was the least detrimental to the child. Consequently, the court made orders consistent with the mother's proposal, with slight amendments to enhance clarity and enforceability. These orders included allocating sole parental responsibility to the mother and restraining the mother from engaging in conduct detrimental to the child's relationship with the father.
The court's final orders included the allocation of sole parental responsibility to the mother, specific provisions regarding the child's residence and contact with the father, and restraints on the mother's conduct to protect the child's relationship with the father. The court emphasised the paramount consideration of the child's best interests in making these orders.
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 suites of orders is proper, having regard to the child’s best interests as the paramount consideration.BACKGROUND The parents, both aged in their 40s met through work in an Asian country where the mother was born and grew up. The father, an Australian by birth was working in the Asian country at the time. The parties commenced their relationship in early 2010 at a time when the father was married. His wife was then pregnant with his child conceived through means of an egg donated by his step-daughter. When the parents began their relationship in 2010 the mother’s daughter was five years of age. This child who has no relationship with her father has always lived with the mother and when the parties’ relationship was intact formed part of their household. It is the mother’s contention that the father is a heavy drinker. She contends that the father often spoke aggressively after he had been drinking and that her daughter and later the child were “terrified” of him. It is the father’s evidence that throughout the relationship and since separation his drinking is not excessive and raises no concerns with respect to the child. This dispute is a matter to which I will return. Both parents contend that the other engaged in family violence throughout the relationship and each deposes to incidents of this nature from 2011. The mother alleges that the father sexually and physically assaulted her and engaged in psychological abuse and financial control. The father contends that the mother physically assaulted him on a number of occasions and denigrated him in the presence of her daughter and later the child. While the mother has always agreed that she injured the father in some of their physical altercations, it is her case that any injuries that she may have inflicted on him resulted from her acting in self-defence. The parents’ respective contentions concerning family violence is also a matter to which I will return. In 2012 the parents were married in Australia. The father obtained employment in a second Asian country in April 2012 and the mother and her daughter moved to live with him in that country. In February 2015 the parties and the mother’s daughter returned to live in the mother’s home country where the child was born a few months later. There appears to be no dispute between the parties that the mother was the child’s primary carer since his birth though the father appears to have been also involved in caregiving when the child was an infant. As touched upon earlier, both parents allege that there were other incidents of family violence throughout their marriage. They both agree that there was a violent incident in November 2018 in which each parent alleges that the other was the aggressor. In December 2018 the father was made redundant from his employment and the parties decided to relocate to Australia in hopes of a better life for the children and more employment opportunities. Initially, in late 2018 the father moved to Australia alone while the mother and her two children (“the children”) remained in the Asian country of her birth.
Evidence
Evidence Before The Court
In addition, the expert gave evidence of the lens through which various services may have provided support for the mother. This may be relevant when considering the veracity of the mother’s evidence about the advice she received from such services if she were found to be the victim of family violence. For all of the foregoing Reasons, I consider it necessary to make findings in relation to family violence and the evidence enables that to be done. Family violence - the evidence In her affidavit, the mother first broadly deposes that the father was “physically, emotionally and financially abusive” towards herself, her daughter and the child during the relationship. She deposes that the father’s violence commenced at the beginning of the parties’ relationship and continued in some form until final separation. The father also makes broad allegations that the mother has perpetrated physical violence towards him which he contends has escalated in frequency and intensity. Alleged events in 2011 The first specific allegation that the mother makes against the father is that she was sexually abused by him. According to her affidavit, on an undated occasion in 2011, the mother was staying with the father at his house at a nominated address. She says that she was tired after work and the father wanted to have sex. The mother deposes to telling the father that she did not want to and that she went downstairs to get away from him. According to her affidavit, the father followed her downstairs, took her by both hands and dragged her up to the bedroom and forced her to have sex with him. She says that she felt disgusted and dirty after the incident. The mother was not challenged about her evidence concerning this incident under cross-examination. According to the father’s affidavit, the first occasion on which he was assaulted by the mother also occurred in the same year. He deposes that on an evening in “early 2011” when he was at a venue with a friend watching a televised sporting match, the mother grabbed him from behind “and in a short physical attack bit my thumb before she was removed from the premises by security”. The father deposes to being shocked and embarrassed and that his thumb bled profusely. The mother was not cross-examined about this specific incident. She was however asked about occasions when she caused injuries to the father generally to which she responded that any such injury was necessary in order to defend herself. The father makes a further allegation that on a specific occasion in 2011 (10 September) he and the mother were engaged in a fairly trivial disagreement which “escalated rapidly to the point where [the mother] scratched me and then bit me on the arm”. The father deposes to photographing his arm (and annexing the photograph to his affidavit) and attempting to discuss the matter with the mother the following day, but that she did not respond. The mother was not cross-examined about this incident. In the context of making allegations about the father’s violence generally, the mother deposes to numerous events in which the father became involved in altercations with neighbours, including physical altercations and that as a result, he was required to move premises on many occasions. The mother provides specific evidence about each of the premises in which the father (and later the family) lived at various times.Alleged events in 2012
Decision
Reasons for decision
There is no best interest consideration directed to “bringing home to a parent” serious concerns in relation to that parent’s conduct towards the child through the making of orders sought by the other parent where such orders are otherwise not be in the best interests of the child. 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,[30] 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 the child must be made jointly, unless the Court provides otherwise.[30] (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 (sub-s 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 him (sub-s 61DA(4)). Each of the parents seeks sole parental responsibility for the child. That is they each seek all the duties, powers, responsibilities and authority which by law parents have in relation to the child. The ICL seeks an order that the father have sole parental responsibility for the child. Each of these proposals are in accordance with the recommendation of the expert that parental responsibility be allocated to the parent with whom the child is to live. As I have found that the father has engaged in family violence the presumption of equal shared parental responsibility does not apply. As the parents have no capacity for joint decision making and the expert recommends that parental responsibility be held by the parent with whom the child is to live, I am easily satisfied that such an order is in the child’s best interests.Other Parenting Orders A determination of the parenting arrangement that is in the child’s best interests is particularly challenging in this complex matter. Ultimately, it is a sad outcome for the child that each of the proposed parenting arrangements involve significant determinants for him and the orders I make will be those that I consider are the least detrimental to him. Having considered all of the foregoing matters in relation to the child’s best interests and the advantages and disadvantages of each proposal, I am satisfied that the parenting arrangement that is proper in these circumstances is as proposed by the mother. I have however made some slight amendments to some of the orders which do not alter what I understand to be the intent of those orders, but consider that the redrafting provides greater clarity. As the child is to spend no time with the father there seems little purpose in restraining his conduct through an injunction so the restraint has been redrafted to apply to the mother only. In my view, there may be real difficulty enforcing an injunction restraining a parent from “doing or saying anything…detrimental to the relationship each party has with the child” as proposed and the restraint has also been redrafted.
Ratio Decidendi
Legal Principle Established
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