FAMILY COURT OF AUSTRALIA
| GARROD & DAVENORT | [2018] FamCA 825 |
| FAMILY LAW – CHILDREN – Parenting – second set of final parenting orders in six years – where necessity to keep child safe from psychological harm takes precedence over the benefit to the child of having a meaningful relationship with the father. FAMILY LAW – FAMILY VIOLENCE – where father’s violence to the mother was physical, psychological and coercive controlling prior to separation – where father continued to coercive controlling violence to mother post separation – father’s physical and psychologically harmful violence to his partner in a relationship subsequent to separation with mother. FAMILY LAW – FAMILY VIOLENCE – where child was exposed to father’s violence towards mother and his later partner. FAMILY LAW – FAMILY VIOLENCE – where conduct of the parenting proceedings by the father is considered to be a form of family violence. FAMILY LAW – FAMILY VIOLENCE – where mother’s allegation of father’s physical harm to child was a matter of genuine belief – where allegation of physical abuse by father to child (bruising), not accepted. FAMILY LAW – UNACCEPTABLE RISK – no finding of unacceptable risk of abuse in relation to alleged physical abuse of the child by the father – finding of unacceptable risk of psychological abuse by father of mother and child. FAMILY LAW – EXPERT EVIDENCE – where Regulation 7 Family Consultant’s assessment in three s62G(2) reports over six years failed to identify or to appropriately address father’s violent behaviour. FAMILY LAW – CHILDREN – Parenting – where supervised time does not afford child sufficient protection - where spend time orders suspended during the trial and father restrained by final order from bringing further parenting proceedings for spend time or residence for a further two years (with effect that child will not spend face to face time with father for a total of four years) whilst father undertakes therapy for perpetrators of family violence – where it is inappropriate to introduce sped time regime by self-executing order – where spend time regime will not be introduced without favourable assessment by the court of the success or otherwise of father’s therapeutic treatment. FAMILY LAW – COSTS – applications can be made by written submissions |
| Family Law Act 1975 (Cth) | |||
| M v M [1988] HCA 68 Briginshaw v Briginshaw (1938) 60 CLR 336 Amador & Amador [2009] FamCAFC 196 T & N [2003] FamCA 1129 R v R: children’s wishes [2000] FamCA 43 | |||
| APPLICANT: | Ms Garrod | ||
| RESPONDENT: | Mr Davenort |
| INDEPENDENT CHILDREN’S LAWYER | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4343 | of | 2012 |
| DATE DELIVERED: | 12 October 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 13, 14, 15, 16, 17 February 2017, 20, 21, 22, 23 February 2017; 24 August 2017; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Adelaide Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Lindsay for 13 - 23 February 2017: |
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- AGLC
- Garrod & Davenort [2018] FamCA 825
- Case
- [2018] FamCA 825
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the father posed an unacceptable risk of harm to the child, and if so, what parenting arrangements were in the child's best interests, particularly in light of the father's history of family violence. The court also had to consider the adequacy of previous expert evidence, which had failed to identify or appropriately address the father's violent behaviour over a six-year period. The court was required to determine whether supervised time would provide sufficient protection for the child and how to address the father's ongoing therapeutic needs.
Bennett J reasoned that the father's pattern of coercive controlling violence, extending to his subsequent relationship and the child's exposure to this violence, created an unacceptable risk of psychological harm to the child. The court found that supervised time was insufficient to afford the child adequate protection. Consequently, the father's time with the child was suspended during the trial and he was restrained by the final order from bringing further parenting proceedings for spend time or residence for a further two years, during which time he was required to undertake therapy for perpetrators of family violence. The court determined it was inappropriate to introduce a spend time regime via a self-executing order and that any future spend time arrangements would only be considered upon a favourable assessment of the father's therapeutic progress.
The court ordered the discharge of all previous parenting orders and granted the mother sole parental responsibility for the child's long-term care, welfare, and development, with the child to live with the mother. The father was restrained from making further parenting applications for two years without leave and was subject to an injunction preventing him from attending near the mother's or child's residence, the mother's workplace, or the child's school or recreational locations. Communication between the father and child was limited to sending a card and/or present twice a year, subject to the mother's discretion and examination. The court also made detailed provisions regarding costs applications and the inclusion of a fact sheet outlining the orders and their consequences.
Orders
Orders of the court
1.
All previous parenting orders in relation to the child B born … 2010 (“the child”) be and are hereby discharged.
2.
The mother have sole parental responsibility for the long term care, welfare and development of the child.
3.
The child live with the mother.
4.
For the avoidance of doubt, the mother is solely responsible, as between herself and the father, for decisions regarding:-
(a) where the child lives;
(b) when and how the child travels, including being able to apply for passports without the consent of the father;
(c) the health and education of the child.
5.
The father not communicate with the child other than to send a card and/or present to the child on two occasions per year (including the child’s birthday). Such items to be sent by prepaid post addressed to the mother at an address provided by her to him, packaged in a way that the mother can read any correspondence and examine any gift. For the avoidance of doubt, whether the communications are given to the child is a matter solely within the mother’s discretion and the mother is not required to return to the father items which she declines to make available to the child.
6.
The father be and is hereby restrained from making any parenting application for time or residence in respect of the child for a period of two (2) years without first obtaining leave of a judge of this Court to do so.
7.
The father be, and is hereby, restrained by injunction from knowingly attending at or within the vicinity of:-
(a) the residence of the mother and/or the child;
(b) the mother’s work place;
(c) the school at which the child is attending from time to time;
(e) any place at which the child works or is employed or attends for recreational purposes.
8.
If the child expresses a wish to communicate with or spend time with the father, the mother at her sole discretion contact the father in writing and endeavour to organise the communication or time to be spent on terms acceptable to the mother.
9.
The father spend time with the child in accordance with any agreement reached between himself and the mother and confirmed in writing between them.
10.
The mother and the father are permitted to provide a copy of this Order and/or these reasons for decision to the following persons:-
(a) The principal or proper officer of any school at which the child is enrolled as a student;
(b) Any health professional or social scientist who treats the child, the mother or the father (or any of them);
(c) Any legal practitioner for the purpose of obtaining advice.
11.
The mother provide the father with a current photograph of the child not less frequently than every six (6) months.
12.
The appointment of the Independent Children’s Lawyer be discharged as and from the expiration of the period in which a Notice of Appeal can be filed without leave.
13.
All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
14.
In respect of costs:-
(a) Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);
(b) Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;
(c) My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);
NOTING THAT any costs so ordered may include the costs of making the application for costs.
IT IS FURTHER ORDERED:
15.
That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS DIRECTED:
16.
That all material produced under subpoena remain in the Registry pending further order.
17.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
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