Federal Circuit and Family Court of Australia
(DIVISION 1)
Green & Green [2022] FedCFamC1F 990
File number: CAC 1332 of 2021 Judgment of: GILL J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – PARENTING – Parties non-compliance with previous court orders – History of family violence including coercive and controlling behaviour perpetrated by the father to the mother – Children living with the mother – Mother seeking respite and facing challenges regarding management of the home – No risk of sexual abuse of the eldest child by the father – Risk of father further undermining relationship between the children and the mother – Amelioration of undermining risk by giving the mother the authority to determine the time with the father – Risk of neglect from both parents – Mother given sole parental responsibility and to decide when children spend time with the father. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 60I, 91B Cases cited: Isles & Nellisen [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3)[2007] FamCA 1364
Phillips & Hansford (No 2) (2019) 60 Fam LR 160
Division: Division 1 First Instance Number of paragraphs: 182 Date of hearing: 21 and 23 November 2022 Place: City E Counsel for the Applicant: Mr A Strik Solicitor for the Applicant: Blomfield Legal Counsel for the Respondent: Mr J Masters Solicitor for the Respondent: Tankard’s Law Solicitor for the Independent Children’s Lawyer: Ms E Karagiannis, Legal Aid, NSW ORDERS
CAC 1332 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GREEN
Applicant
AND: MR GREEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
14 december 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.Ms Green (“the mother”) has sole parental responsibility for the children:
(a)W born 2011;
(b)X born 2014;
(c)Y born 2016; and
(d)Z born 2017.
3.The children shall live with the mother.
4.Mr Green (“the father”) shall not spend time with the children unless with the prior written consent of the mother.
5.The mother’s written consent to the father spending time with the children may be given by any means, including electronically, and including by text message.
6.Neither parent shall make hurtful or disrespectful comments about the other, or the children’s extended family to the children or within the hearing of the children or allow a third party to do so.
7.The Independent Children’s Lawyer be granted leave to provide a copy of these Orders to the NSW Department of Communities and Justice and to the NSW Police.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of…
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- [2022] FedCFamC1F 990
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CaseChat Overview and Summary
In Green & Green, the Federal Circuit Court was tasked with determining the best care arrangement for the four children of the parties following their separation. The mother, who had been the primary caregiver during the relationship, sought to maintain sole care of all the children, while the father sought to have the eldest child, W, live with him. The Family Court was required to consider the various risks of harm faced by the children and the potential benefits of different care arrangements.
The court was required to decide whether the father's household was safe enough for W to live with him, and whether the mother's household posed a significant risk to the three boys. The court also had to consider the father's history of coercive and controlling behaviour towards the mother and the children, and the mother's concerns about the father's ability to provide a safe and stable environment for W.
The court found that while the father's household was deemed "safe" by the NSW Department of Communities and Justice, the risk level was "high", and it was unclear what this meant or why such assessments were made. The court also found that the mother's household posed a high risk to the three boys, but it was unclear what this meant. The court considered the father's history of coercive and controlling behaviour towards the mother and the children, and the mother's concerns about the father's ability to provide a safe and stable environment for W. The court ultimately decided that the children would live with the mother, and the father would have no contact with them unless the mother agreed in writing. The father was also required to undertake anger management and behaviour change programs.
The court also considered the Independent Children's Lawyer's suggestion that the paternal grandmother be in substantial attendance, but found that it was unclear what such an order would mean in the context of this case, nor the protection such would provide to undermining of the mother, particularly given the paternal grandmother's criticism of the mother to the Family Report writer. The court found that the children remained at risk of neglect and of exposure to family violence despite the orders made.
The court was required to decide whether the father's household was safe enough for W to live with him, and whether the mother's household posed a significant risk to the three boys. The court also had to consider the father's history of coercive and controlling behaviour towards the mother and the children, and the mother's concerns about the father's ability to provide a safe and stable environment for W.
The court found that while the father's household was deemed "safe" by the NSW Department of Communities and Justice, the risk level was "high", and it was unclear what this meant or why such assessments were made. The court also found that the mother's household posed a high risk to the three boys, but it was unclear what this meant. The court considered the father's history of coercive and controlling behaviour towards the mother and the children, and the mother's concerns about the father's ability to provide a safe and stable environment for W. The court ultimately decided that the children would live with the mother, and the father would have no contact with them unless the mother agreed in writing. The father was also required to undertake anger management and behaviour change programs.
The court also considered the Independent Children's Lawyer's suggestion that the paternal grandmother be in substantial attendance, but found that it was unclear what such an order would mean in the context of this case, nor the protection such would provide to undermining of the mother, particularly given the paternal grandmother's criticism of the mother to the Family Report writer. The court found that the children remained at risk of neglect and of exposure to family violence despite the orders made.
Orders
Orders of the court
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Background
Background to the litigation
This case calls for a careful consideration of the consequences, both positive and negative, of differing care arrangements, in particular considering how they expose or ameliorate the various risks of harm faced by the children.Background The parties had a relationship which spanned approximately twenty years. During their relationship, neither maintained full time employment, rather they respectively undertook casual work.[5] The mother was the primary carer for all the children. [5] Affidavit of the mother filed 17 October 2022, paragraphs 9–10. The family has had involvement with the NSW Department of Communities and Justice (“DCJ”) since 2019. DCJ received 18 screened reports for Risk of Significant Harm spanning the last years of the relationship and the post separation periods. The parties separated in early 2021, the mother leaving the D Town family home with the children, without notice to the father and with the support of DCJ. She and the children were, shortly thereafter, located in public housing in a suburb of City E. Shortly after the mother left the family home in early 2021 with the four children and moved to City E, W returned to live with the father. The paternal grandmother travelled to the mother’s home in City E and collected W, who went to live with the father. While in the father’s care, W attended F School. The three boys remained in the mother’s care. In mid-2021, DCJ conducted a safety and risk assessment on the father’s household, at that time he being the sole carer of W. The outcomes were that his household was “safe”, and the risk level was “high”. It is unclear what this means, or why such assessments were made. Also on that day, DCJ conducted a safety and risk assessment on the mother’s household, who at that time was caring for the three boys. The outcome was high. Again, the significance of this is unclear. On 1 June 2021, following an application to the Family Relationship Centre at City E, a certificate advising that family dispute resolution would not be appropriate for the parties was issued under s 60I of the Act. The mother filed an Initiating Application in the Federal Circuit Court (as it was then known) on 23 June 2021 seeking to recover W and keep all the children in her care. On 5 July 2021, Judge Hughes made orders appointing an ICL. On 21 July 2021, a Senior Judicial Registrar made orders for all children to live with the mother and for the father to spend no time with W. An injunction was made restraining the mother from allowing the children to spend any time with the father, other than the boys having supervised contact with him. An injunction was also made restraining the father from removing the children from the mother’s care, attending and removing the children from their schools and day care centres. The Senior Judicial Registrar also made orders that the father spend time with X, Y and Z at the City E Contact Service, conditional on the father complying with orders 7 and 8 dated 20 July 2021, as follows: 7. Within 7 days of the date of these orders the father must do the following:a. Enrol in an anger management course at [G Organisation]; andb. Commence the intake process to undertake anger management counselling at [G Organisation]; andc. Attend upon his general practitioner for the purpose of undertaking a mental health assessment and if necessary to obtain a mental health plan; andd.Contact [H Organisation] and enrol in the next available Men’s Behaviour Change Program and is required to complete the course and provide the certificate of completion to the mother’s solicitor and the Independent Children’s Lawyer within 7 days of completing the course.8. For the purpose of Order 7 the father is to:a.Comply with all recommendations made by the anger management counsellor as to his attendance at [G Organisation]; andb.Comply with all reasonable directions made by his general practitioner as to treatment and further attendance upon the general practitioner; andc.No less than 7 days prior to his first appointment, provide the Counsellor with a copy of all affidavits filed by the parties in the proceedings and these Orders; andd.Within 7 days of the date of these orders, provide to his anger management counsellor, an irrevocable authority permitting the counsellor to speak with the Independent Children’s Lawyer about the counsellor’s recommendations and the father’s compliance with those recommendations.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst not an ideal arrangement, the circumstances facing the children and parties are not ideal. This is an arrangement that has the potential to secure the benefits of meaningful relationship with the father, counteract undermining of the relationship with the mother and exposure to coercive and controlling behaviour by the father towards the children, and to equip the mother with the power to make the decision such that she is not the subject of control by the father through the children.Conclusion Final orders will be made providing for the children to live with the mother, and for the mother to hold sole parental responsibility. The orders will provide that the father is, subject to the agreement in writing from the mother (which may be by text message), restrained from coming into contact with the children. Whilst the ICL sought orders for the children to engage in counselling, and while it would be beneficial for this to occur, there is insufficient evidence to determine that the particular scheme of counselling is available, or what the scope of obligation would, as a matter of practicality, be imposed upon the mother. Similarly, the mother cannot be directed to undertake to comply with direction from C Health Service or the DCJ, despite anticipated benefits accompanying engagement and compliance with those agencies. While it was suggested that the paternal grandmother be in substantial attendance, it is unclear what such an order would mean in the context of this case, nor the protection such would provide to undermining of the mother, particularly given the paternal grandmother’s criticism of the mother to the Family Report writer. The ICL should, however, be at liberty to provide these orders to NSW Police and the DCJ as, despite these orders, in the context of limited options available to the court, the children remain at risk of neglect and of exposure to family violence.
Ratio Decidendi
Legal Principle Established
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