Haak & Haak

Case [2022] FedCFamC1F 769

Federal Circuit and Family Court of Australia

(DIVISION 1)

Haak & Haak [2022] FedCFamC1F 769

File number(s): BRC 1036 of 2017
Judgment of: HOWARD J
Date of judgment: 12 October 2022 
Catchwords: FAMILY LAW – PARENTING – Where the father consumed excessive amounts of alcohol over a long period of time – Where the father perpetrated family violence – Where the mother and the children were exposed to the family violence perpetrated by the father – Where the father pleaded guilty to one count of strangulation of the mother – Where the father pleaded guilty to one count of contravention of a domestic violence order with a circumstance of aggravation – Where the father served a term of imprisonment in respect of those convictions – Consideration of risk issues – Consideration of the possible amelioration of risk issues – Best interests – Where the children expressed wishes not to spend time with the father – Where the father continues to consume alcohol – Where the father amended his case during the course of the trial and sought only supervised time with the children – Where the mother and the Independent Children’s Lawyer sought an order that there be no time between the children and the father – Where the overwhelming weight of the expert evidence leads the Court to conclude that there is an unacceptable risk of emotional harm to the children from the father even if time was supervised at a contact centre – Order that there be no time between the children and the father – Where the evidence reveals a pathway for the father to follow in the future – A consideration of whether the children are Aboriginal children.
Legislation:

Evidence Act1995 (Cth) s 128, 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 61DA, 65DAA

Criminal Code Act 1899 (Qld) ss 315A, 564(3A)

Domestic and Family Violence Protection Act2012 (Qld) s 177

Cases cited:

A v A (1998) FLC 92-800

Amador v Amador (2009) 43 Fam LR 268

Baghti & Baghti & Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ vVAJ (1998) 197 CLR 172

Cox v Pedrana (2013) 48 Fam LR 651

Cubbin & Cutler [2018] FamCAFC 84

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Harridge & Harridge [2010] FamCA 445

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen [2022] FedCFamC1A 97

Johanson & Johanson [2022] FedCFamC1A 74

M v M (1988) 166 CLR 69

N & S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Rice & Asplund (1979) FLC 90-725

SPS v PLS (2008) FLC 93-363

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Place: Brisbane
Date of hearing: 6, 7, 8 and 9 June 2022
Date of last submission/s: 9 June 2022
Number of paragraphs: 258
Counsel for the Applicant: Mr Taylor
Solicitor for the Applicant: Legal Aid…

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Details
AGLC
Haak & Haak [2022] FedCFamC1F 769
Case
[2022] FedCFamC1F 769
Decision Date

CaseChat Overview and Summary

The case of Haak & Haak involved a dispute between the parents over parenting arrangements for their two children, X and Y. The father was found to have a history of excessive alcohol consumption and had perpetrated family violence, including pleading guilty to strangulation of the mother and contravention of a domestic violence order. He served a term of imprisonment for these convictions. The mother and the children had been exposed to the father's family violence, and the children had expressed their wishes not to spend time with him. The father continued to consume alcohol and, during the trial, amended his case to seek only supervised time with the children. The mother and the Independent Children's Lawyer sought an order that there be no contact between the children and the father. The court had to determine the best interests of the children, taking into account the risk of harm from the father and the possible amelioration of those risks.

The court considered the primary considerations set out in section 60CC(2) of the Family Law Act, giving greater weight to the need to protect the children from physical or psychological harm. The court also noted the importance of a meaningful relationship with both parents, but found that the risk of harm from the father outweighed this consideration. The court heard expert evidence that indicated an unacceptable risk of emotional harm to the children if they were to have any contact with the father, even if supervised at a contact centre. The court also considered the possibility of the father following a pathway to address his issues in the future, but found that this did not change the current risk to the children. The court did not need to consider section 65DAA of the Act, as equal shared parental responsibility was not in the best interests of the children.

Following the hearing, the court made orders that the children live with the mother, who has sole parental responsibility. The father is not to have any contact with the children, except for the ability to send letters and gifts on their birthdays and at Christmas, which the mother will vet. The mother is permitted to relocate and travel outside Australia with the children, and passports or travel documents may be issued for the children without the father's consent. The court altered some of the wording of the proposed orders to reflect the best interests of the children.

The court's orders reflect the significant risk of harm to the children from the father and the children's wishes not to have contact with him. The court found that there was an unacceptable risk of emotional harm to the children from the father, even if contact was supervised. While the father had amended his case to seek supervised contact, the court found that this did not change the risk to the children. The court also considered the possibility of the father following a pathway to address his issues in the future, but found that this did not change the current risk to the children. The orders reflect the importance of protecting the children from harm and the need to give greater weight to this consideration when determining the best interests of the children.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The children (X born on … 2009 and Y born on … 2012) live with the mother.

2. The mother have sole parental responsibility for the children.

3. The father shall spend no time with the children and nor shall the father communicate with the children except as outlined in these orders.

4. The mother is granted permission to relocate the residence of the children forthwith.

5. For the purposes of Section 11 of the Passports Act 2005 (Cth) (the Passports Act) this Order expressly permits the issue of a Passport or Travel Documents (within the meaning of the Passports Act) for the Children, X born on … 2009 and Y born on … 2012, upon application by the mother and without the consent of the father and without the signature of the father.

6. The children are permitted to travel outside the Commonwealth of Australia.

7. The mother is permitted to travel outside the Commonwealth of Australia with the children.

8. The father is permitted to send the children letters and gifts on their birthdays and at Christmas. The mother shall vet the letters and gifts to ensure they are child focused.

9. To facilitate the receipt of the letters and gifts, the mother shall provide to the father a postal address within sixty (60) days of the date of this order.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is no need for the Court to consider s 65DAA – because the parents will not have equal shared parental responsibility. In any event, equal time or substantial and significant time would not be in the best interests of these children. That much must be apparent from these Reasons for judgment. conclusion At the conclusion of the hearing, the Court heard oral submissions on behalf of the parents and the ICL. As noted, the ICL and the mother agree on the wording of orders. I have indicated in this judgment that I also (generally) agree with the orders proposed. The Court has, however, altered some of the wording of the proposed orders – as the Court sees fit – in accordance with the best interests of these children. Those orders nonetheless reflect the Reasons for judgment.

Ratio Decidendi

Legal Principle Established

Section 60CC then states how it is that a Court is to determine what is in a child’s best interests. Section 60CC(2) sets out the primary considerations. Sections 60CC(2) and 60CC(2A) provide:-“(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).…” There are additional considerations stated in s 60CC(3) and I will refer to the relevant parts of that subsection later in these Reasons for judgment. However, it is particularly pertinent to note here that the Parliament has mandated that “the need to protect the child[ren] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” is to be at the forefront of the Court’s consideration (note ss 60CC(2)(b) and (2A)). In relation to Part VII applications generally, I note the following principles which emanate from the authorities: (a)The Court is not required to consider the various sections and subsections in any specific order: Cox v Pedrana (2013) 48 Fam LR 651 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31]. (b)In Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63] – the Full Court noted that the Court:-“…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”(c)This approach by the Full Court is in line with authority from the High Court. In this regard, I note Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) at [62], where Gleeson CJ, McHugh and Gummow JJ stated, inter-alia:-“[62]… A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”(d)More recently, in Eagle & Scarlett (No.2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43], the Full Court supported this approach from Whisprun.(e)In Baghti, the Full Court also relied on the decision of Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 – where Mahoney JA stated at pp.385–386, inter-alia:-“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”