Haering & Willis

Case [2023] FedCFamC1F 672

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Haering & Willis [2023] FedCFamC1F 672

File number(s): BRC12158 of 2020
Judgment of: JARRETT J
Date of judgment: 18 August 2023
Catchwords: FAMILY LAW - PARENTING - Where first respondent mother will not support a relationship between child and second respondent father - Where the mother has a history of non-compliance with orders for child to spend time with the father - Where the mother has been primary carer for child - Where there will be short-term harms to child if change of residence ordered - Where child will benefit from a meaningful relationship with the father - Where long-term benefits of meaningful relationship outweigh short-term harms - Change of residence ordered
Legislation: Family Law Act 1975 (Cth) ss 11F, 61C, 61DA(1), 61DA(2), 62G
Cases cited: Bottoms v Rogers (2006) 27 QLR 43
Division: Division 1 First Instance
Number of paragraphs: 153
Date of hearing: 26 & 27 July 2023
Place: Brisbane
Counsel for the Applicant: Mr Hartwell
Solicitors for the Applicant Lander Solicitors QLD
Counsel for the First Respondent: Mr Thwaites
Solicitors for the First Respondent: Sterling Law (QLD)
Counsel for the Second Respondent: Ms Earl
Solicitors for the Second Respondent: VM Family Law
Counsel for the Independent Children’s Lawyer: Ms Bertone
Solicitors for the Independent Children’s Lawyer: ELR Law

ORDERS

BRC12158 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HAERING

Applicant
AND:

MS WILLIS

First Respondent

MR HAERING

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

18 AUGUST 2023

THE COURT ORDERS THAT:

1.All previous parenting orders in respect of X born 2016 are discharged.

2.The second respondent have sole parental responsibility for decisions concerning the major long-term issues for X.

3.X live with the second respondent.

4.Should the first respondent return to live within a 50 kilometre driving distance of the City B Central Business District, X shall spend time and communicate with the first respondent as agreed between the first respondent and second respondent and failing agreement as follows:

(a)during the school term, each alternate weekend from 3:00pm or after school Friday until 9:00am or the commencement of school Monday;

(b)commencing with X’s first term school holidays in 2024, for half of all X’s school holidays, being the first half in even-numbered years and the second half in odd-numbered years;

(c)from 5:00pm Christmas Eve until 2:00pm Christmas Day in odd-numbered years and from 2:00pm Christmas Day until 5:00pm Boxing Day in even‑numbered years;

(d)on X’s birthday, if X is otherwise not spending time with the first respondent pursuant to these orders:

(i)from 9:00am until 1:00pm if X’s birthday falls on a weekend; or

(ii)from 3:00pm or after school until 6:00pm if X’s birthday falls on a school day;

(e)on Mother’s Day, if X is otherwise not spending time with the first respondent pursuant to these orders, from 9:00am until 6:00pm; and

(f)by telephone or digital communication, each Wednesday between 6:00pm and 7:00pm, with the first respondent to…

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Haering & Willis [2023] FedCFamC1F 672
Case
[2023] FedCFamC1F 672
Decision Date

CaseChat Overview and Summary

The case of Haering & Willis involved the parents of a child, X, and the court's determination of the best interests of the child in terms of living arrangements and parental responsibilities. The case was heard in an Australian court under the provisions of Part VII of the Family Law Act 1975 (Cth). The primary issues before the court included whether X would benefit from a meaningful relationship with each parent, the need to protect X from potential harm, the nature of X's relationships with family members, and the impact of any changes in X's circumstances. Additionally, the court needed to assess the capacity of each parent to meet X's needs, including emotional and intellectual needs, and the relevance of any family violence to the proceedings.

The court's reasoning and findings were based on the evidence provided by both parties and expert assessments. It was established that the first respondent had not complied with court orders regarding X's contact with the second respondent and the applicant, nor with orders regarding X's residence. The first respondent did not support a relationship between X and the second respondent, whereas the second respondent believed in the benefits of such a relationship. The court found that there was no credible evidence to support the first respondent's claims of sexual abuse in the second respondent's household. The court concluded that X would benefit from a meaningful relationship with both parents and that the second respondent was better positioned to meet X's needs. The court also determined that the presumption of equal shared parental responsibility did not apply due to the lack of co-parenting relationship between the parents.

The final orders of the court were that X should live with the second respondent, and the second respondent was granted sole decision-making responsibility for major long-term issues in X's life. X was also to spend time with the applicant on the last Friday of each month in Brisbane. The court emphasized the importance of a meaningful relationship between X and both parents and recognized the advantages of the second respondent's proposal, despite the short-term trauma of changing arrangements.

Orders

Orders of the court

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Background

Background to the litigation

Having regard to the evidence of the parties, their submissions and the matters raised for consideration by the provisions of Part VII of the Family Law Act 1975 (Cth), the significant issues for determination necessary to inform the orders to be made are as follows:(a)will X benefit from a meaningful relationship with each of her parents and in particular her father, the second respondent?(b)is there a need to protect X from harm by reason from being exposed to:(i)abuse from the second respondent;(ii)family violence from the second respondent;(iii)family violence from the first respondent?(c)what is the nature of X’s relationship with her parents, her paternal grandmother and her half-siblings in her mother’s household?(d)what is the likely effect of any changes in X’s circumstances, including the likely effect of any separation from the first respondent and her half-siblings?(e)what is the extent of the second respondent’s capacity to provide for X’s needs including her emotional and intellectual needs?(f)what is the extent of the first respondent’s capacity to provide for X’s needs and in particular her emotional needs?(g)has there been any family violence involving X or a member of X’s family that is relevant to these proceedings and if so, what significance are those matters to the outcome of these proceedings?BACKGROUND AND FINDINGS OF FACT The applicant is the second respondent’s mother. The first and second respondent’s relationship commenced in 2013. X was born in 2016. There is a dispute about when the parties separated which I have dealt with more fully later in these reasons. The applicant paternal grandmother lives in Region F, Queensland. She is 72 years of age and is employed in the health sector. She works 3 days per week. Her occupation is not in evidence. The first respondent is 50 years of age. She was born in New Zealand. She has two other children from a previous relationship. The oldest is G, who is 15 years of age. Her second child is H, who is 14 years of age. During the parties’ relationship the first respondent did not work outside of the home. She now works as a “sales assistant” although what that means is not described in the evidence. Her working hours are not described in her evidence. She has not re-partnered. Presently X and H live with her at an undisclosed address in New South Wales. G lived with her until 31 January, 2023 but now lives with his father. In that respect, the first respondent’s trial affidavit says:17.… [X] has been referred for additional learning and wellbeing support and the school is working with her regarding ‘her sadness over [G] no longer living with us.’ …18.[X] enjoys playing with her older siblings, [H] and [G] and has a very special relationship with them and they enjoyed playing together daily. As [G] is not living at home currently, [X] is very attached to [H]. The first respondent gives no evidence about the circumstances in which G no longer lives in her household. That was left to cross-examination. It emerged that G had been struggling emotionally or psychologically for some time and that the first respondent had not attended to G’s needs in that respect such that their relationship had deteriorated to the point that G had become physically abusive to the first respondent (he punched her in the face), had been charged with assault and according to the first respondent had not been allowed to return home by “the judge”. It turned out upon further enquiry that the first respondent had organised for G to live with his father in Western Australia because of this fracas. That G might go and live with his father is not particularly remarkable except for the fact that neither H nor G have spent much time with their father since the first respondent had separated from him (which was at least as long ago as 2013). As to that, in her trial affidavit, the first respondent records:59.At this stage, [which seems to be about December, 2020], [G] and [H] did not spend any time with their father as he had re-partnered and had a young baby and had elected to not see the children. Their father also smoked marijuana, which I have concerns about the children being around.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have set out above the history of the protection order application between the first respondent and second respondent. I am not satisfied on the evidence that the second respondent has perpetrated the family violence alleged by the first respondent in her trial affidavit. That is so, notwithstanding the making of the protection order.CONCLUSIONS The first respondent’s proposal for X carries with it the advantage of stability. It will continue what it is that X has been used to until now. She will maintain her relationship with her mother as it has been up until now and she will maintain her relationship with H. However, that is about all that can be said of the benefits of the first respondent’s proposal. There are disadvantages to the first respondent’s proposal, the most significant being the near certainty that X will not have a relationship with the second respondent nor the applicant if she remains in the first respondent’s care. She will continue to be delivered a narrative that the second respondent is a bad person with whom X should have no truck. She will be denied the benefits of a relationship with each of her biological parents and that will be attended by long-term difficulties for her. It may also be the case that X would not have some of her developmental difficulties attended to as Mr J has identified. If G is any example, it seems the first respondent lacks the capacity to properly meet the emotional or psychological needs of her children as and when they need her to do so. The second respondent’s proposal carries with it the advantage of an opportunity for X to have a proper relationship with both of her parents. I consider that he will meet X’s physical, emotional and intellectual needs, including her need for an ongoing and meaningful relationship with her mother and half-siblings H and G. There is nothing in the evidence to suggest to me that he will not be able to do so or that he is not interested in doing so. It will, however, have disadvantages for X, the most significant of which will be a change to her current arrangements. That will carry with it trauma for X that cannot be underestimated. However, I am satisfied that the second respondent will meet X’s needs to deal with that trauma. That short-term trauma will be, in my view, outweighed by the long-term advantages for X that I have identified. On balance, I consider that the second respondent’s proposal overall carries with it more advantages for X than disadvantages compared to the first respondent’s proposal. Section 61DA(1) of the Act requires me to presume that it is in X’s best interests for her parents to have equal shared parental responsibility for decisions concerning major long-term issues for X. Section 61DA(2) provides the circumstances in which the presumption does not apply. Moreover, I am not required to apply the presumption where I do not consider that it is in X’s best interests for it to apply. Here, I do not consider that it is in X’s best interests for the presumption to apply because her parents have no co-parenting relationship whatsoever. There is no communication between them whatsoever. Such is the antipathy held by the first respondent towards the second respondent that in my view, no order for equal shared parental responsibility could work. I am of the firm view that the parent with whom X should live should be the parent who has sole decision-making responsibility for major long-term issues in X’s life.

Ratio Decidendi

Legal Principle Established

The orders agreed on 5 October, 2022 also provided for X to spend time with the applicant on the last Friday of each month in Brisbane. None of that agreed time has occurred.CONSIDERATION In this case there are certain incontrovertible propositions. They are:(a)the first respondent has not complied with orders for X to spend time with the second respondent or the applicant on most occasions because she simply chose to not comply;(b)the first respondent did not comply with orders made on 9 June, 2021 and 1 December, 2021 for her to return X’s residence to a place that was within 50 km of City B and then 200 km of City B because she chose not to;(c)the first respondent does not intend to comply with any orders for X to spend time (supervised or otherwise) with the second respondent;(d)the first respondent does not consider that X should have a relationship with the second respondent at all and that he has nothing to offer her as one of her parents; and(e)the first respondent will not support a relationship between X and the second respondent. To the extent that the first respondent suggests that she would facilitate a relationship between X and the second respondent if X chooses for there to be such a relationship, I do not accept that evidence. As is clear from the circumstances in which G has come to reside with his father, a relationship between the children and their respective fathers will only occur if it suits the first respondent’s purposes. According to the evidence of Mr J, it is generally accepted that children will benefit from a meaningful relationship with each of their parents. Here, I am satisfied that the second respondent considers that X will benefit from a meaningful relationship with each of her parents including the first respondent, notwithstanding the way in which she has attempted to prevent X from having a relationship with the second respondent. I am not satisfied, however, that the first respondent considers that there will be any benefit to X from a relationship with her father, the second respondent. In my view, however, X will benefit from a meaningful relationship with each of her parents. There is nothing in the evidence to suggest that either of these parents do not have anything to offer X as her parents and I proceed on the basis that subject to all other considerations it would be to X’s benefit for there to be a meaningful relationship between she and each of them. One aspect of the first respondent’s case is that X is at an unacceptable risk of sexual abuse in the second respondent’s household. The basis for the first respondent’s case are the complaints that H made to her and repeated to the police. For the reasons I have given above, however, I do not accept that the statements made by H to her mother, the Queensland police or the New South Wales police demonstrate that there is a risk of sexual abuse to X in the second respondent’s household. I find that there is no need to protect X from a risk of abuse in the second respondent’s household.