FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
George & George [2023] FedCFamC1F 718
File number(s): BRC 4444 of 2020 Judgment of: HOWARD J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – PARENTING – where the two children lived in a week about shared care arrangement following the separation of the parents – where the children now aged ten and eight have not seen the mother since July 2021 – where the father unilaterally stopped the children’s time with the mother – where the father failed to support and failed to facilitate the children’s relationship with the mother – a consideration of risk issues – evidence of alienating behaviour by the father – change of residence necessary – moratorium of the children’s time with the father – followed by supervised time with the father – graduating to unsupervised time – where the children will otherwise live with the mother – where the mother will have sole parental responsibility. Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No.2) [2020] FamCAFC 291
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092
Johanson & Johanson [2022] FedCFamC1A 74
Masson & Parsons (2019) 266 CLR 554
N and S and the Separate Representative (1996) FLC 92-655
Division: Division 1 First Instance Number of paragraphs: 100 Date of last submission 11 August 2023 Date of hearing: 3, 4, 7, 8, 9, 10 and 11 August 2023 Place: Brisbane Counsel for the Applicant: Mr Balzamo Solicitor for the Applicant: Browns Lawyers Respondent Litigant in person Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 4444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GEORGE
Applicant
AND: MR GEORGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous orders and notations be discharged.
Parental responsibility
2.That the mother shall have sole parental responsibility for the children X born 2012 and Y born 2015 (“the children”).
Live with
3.That at the Commonwealth Court Building at Brisbane at 3.00pm on 11 August 2023 the Independent Children’s Lawyer shall explain these orders to the children, and Mr S is REQUESTED to be present and to assist with the explanation of these orders to the children, and the Manager, Court Child Services, is REQUESTED to assist with provision of an interview room for the children’s meeting with the Independent Children’s Lawyer and Mr S.
4.That the father shall leave the Court precinct immediately prior to 3.00pm on 11 August 2023 and…
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CaseChat Overview and Summary
The court was tasked with assessing the risk of harm to the children, a crucial aspect in determining their best interests. The court was required to give deep, careful consideration to the risks that have arisen or may arise in relation to the children, in accordance with the principles established in the High Court decision of M v M (1988) 166 CLR 69. The court also considered the Full Court decision in Isles & Nelissen (2022) FLC 94-092, which discussed the standard of proof relating to risk, adopting the previous dissenting judgment of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212. The qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm, as stated in the dissenting judgment of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655.
The court conducted a thorough examination of the evidence presented, taking into account the primary and additional considerations outlined in the relevant legislation. The court assessed the risk of harm to the children and determined the appropriate parenting arrangements, with the paramount consideration being the children's best interests. The court's decision was based on a careful analysis of the evidence and the application of the relevant legal principles, ensuring that the children's welfare and development were prioritised in the outcome. The court's orders reflected its findings and the best interests of the children.
Orders
Orders of the court
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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
The legislation directs the Court to various sections, beginning with s 60CC(2) and s 60CC(2A):-“(2) The primary considerations 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.(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” The primary considerations for the Court are - the benefit to the children of having a meaningful relationship with both of their parents and, secondly, the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is required to give greater weight to s 60CC(2)(b) - the need to protect children from the various forms of harm to which I have referred. The additional considerations are set out in s 60CC(3) and I will come to those in due course. At this point in time, though, I want to have regard to the question of risk. The question of risk has loomed large in this case. This Court is required, when considering risks of harm to children, to give deep, careful consideration to the risks that have arisen or may arise in relation to the children. The assessment of risk has been referred to on numerous occasions in the Courts, including the decision of the High Court in M v M (1988) 166 CLR 69 (“M & M”), which whilst it was itself a case where the High Court considered a case of alleged sexual abuse, nonetheless the High Court in M & M specifically said that - courts exercising jurisdiction in family law are required to take into account, in resolving the issue relating to the best interests of children, the existence and magnitude of risks of harm to children. These are fundamental matters “to be taken into account in deciding issues of custody and access”. So the Court made it clear that these are fundamental issues in all parenting cases involving custody and access. More recently, there has been a Full Court decision called Isles & Nelissen (2022) FLC 94-092 in this Court, which spoke about the standard of proof relating to risk. The Court adopted the previous dissenting judgment of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212. For many years, the dissenting judgment of Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 has provided guidance to trial judges in Australia. The judge stated in his judgment that:-“[12]… it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child[2]… and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm.”(Citations omitted)[2] At 82,713 – 82,714.