Hanna and Ethington - [2019] FCCA 1331

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANNA & ETHINGTON

[2019] FCCA 1331

Catchwords:
FAMILY LAW – Parenting – father seeking time with children aged 8 and 3 – mother seeking an order for no time and no communication – where the father perpetrated family violence during and after the relationship – where the older child has intrusive thoughts about the violence he witnessed – where it is probable that family violence is occurring in the father’s current relationship – where the father and his partner are both using methamphetamine (ice) – where the father would like regular unsupervised time with the children – where the children would be at unacceptable risk of harm if they spent unsupervised time with the father – where the father realised at the end of the trial that the writing was on the wall and instead asked the court to order that the mother permit him to spend time with the children if she considered it safe and appropriate for him to do so – where this would be unfairly burdensome on the mother – orders made as sought by the mother – mother to have sole parental responsibility for the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA

Cases cited:

Paddon & Tighe [2019] FCCA 1154

Lindsay & Piper [2019] FCCA 358

Applicant:

MS HANNA

Respondent:

MR ETHINGTON

File Number:

NCC 42 of 2017

Judgment of:

Judge Terry

Hearing dates:

11 & 12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Newcastle

Delivered on:

26 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Conte-Mills

Solicitors for the Applicant:

Craney Family Solicitors

Counsel for the Respondent:

Mr Guyder

Solicitors for the Respondent:

The Family Law Firm

ORDERS

The mother shall have sole parental responsibility for the children [X] born … 2016 and [Y] born … 2010 (“the children”).
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
The father is restrained from approaching or contacting the mother unless such contact is through a solicitor or for the purpose of attending mediation and restrained from taking any steps to learn of the location or the residence of the mother or children.
The father is restrained from entering onto or approaching within 100 metres of the children’s residence and any school attended by the children.
The father is restrained from entering onto or approaching within 100 metres of the mother’s place of employment.
For all purposes the children [X] born … 2016 and [Y] born … 2010 shall be known henceforth as [X] HANNA born … 2016 and [Y] HANNA born … 2010.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the children [X] ETHINGTON born … 2016 and [Y] ETHINGTON born … 2010 to [X] HANNA born … 2016 and [Y] HANNA born … 2010.
The Registrar of Births,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hanna and Ethington

Details

AGLC: Hanna and Ethington [2019] FCCA 1331
Case: [2019] FCCA 1331
Decision Date: 26 April 2019

CaseChat Overview and Summary

This matter concerned an application before Judge Terry regarding the parenting arrangements for two children, [X] and [Y]. The dispute centred on the father's parenting capacity, his drug use, and instances of family violence, which the mother argued rendered him unfit to have contact with the children. The mother sought orders for sole parental responsibility, that the children live with her, and that the father have no time or communication with them. Additionally, she sought orders restraining the father from approaching or contacting her or the children's residence and school, and authorising a change of the children's surname from Ethington to Hanna, and permitting international travel with the children without the father's consent.

The court was required to determine the father's parenting capacity, considering his drug use and history of family violence. It also had to assess the extent to which each parent had taken opportunities to spend time with, communicate with, or participate in decision-making about the children, and the financial support provided by each parent. The court was further tasked with considering the maturity, sex, background, and other characteristics relevant to the children, as well as the likely effect of any changes to their circumstances.

Judge Terry found that while the father had interacted appropriately with the children in a supervised setting at Relationships Australia, this did not equate to the capacity to parent them in a broader sense. The court identified the father's drug use and family violence as significant factors demonstrating a lack of parenting capacity. The father admitted to recreational use of cannabis, amphetamines, ecstasy, and cocaine, and a drug test from early 2016 confirmed the presence of MDMA. The mother was found to be a good and reliable carer, and the father had not spent significant time with the children due to his drug use and behaviour. The mother was also the primary financial supporter of the children.

The court made orders granting the mother sole parental responsibility for the children and that they live with her. The father was ordered to have no time or communication with the children and was restrained from approaching or contacting the mother, the children's residence, school, or the mother's place of employment. The children were to be known as Hanna, and the mother was authorised to change their surname and apply for passports for them, notwithstanding the father's lack of consent.

Orders

Orders of the court

The mother shall have sole parental responsibility for the children [X] born … 2016 and [Y] born … 2010 (“the children”).

The children shall live with the mother.

The father shall spend no time with and have no communication with the children.

The father is restrained from approaching or contacting the mother unless such contact is through a solicitor or for the purpose of attending mediation and restrained from taking any steps to learn of the location or the residence of the mother or children.

The father is restrained from entering onto or approaching within 100 metres of the children’s residence and any school attended by the children.

The father is restrained from entering onto or approaching within 100 metres of the mother’s place of employment.

For all purposes the children [X] born … 2016 and [Y] born … 2010 shall be known henceforth as [X] HANNA born … 2016 and [Y] HANNA born … 2010.

The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the children [X] ETHINGTON born … 2016 and [Y] ETHINGTON born … 2010 to [X] HANNA born … 2016 and [Y] HANNA born … 2010.

The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order 8 above is to do all acts and things to register the change of name of [X] ETHINGTON born … 2016 and [Y] ETHINGTON born … 2010 to [X] HANNA born … 2016 and [Y] HANNA born … 2010 pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

10.

The mother is permitted to travel internationally with the children and can apply for a passport for the children notwithstanding the consent of the father has not been obtained.

Background

Background to the litigation

I must consider the maturity, sex and background and other characteristics relevant to the children. That does not help me either as a separate consideration other than to comment as I often do that children of this age are completely defenceless against violent behaviour by adults or neglect or abuse due to drug use. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents. That does not help me either. Things that might come under that heading I will discuss in other parts of the judgment. I must consider the likely effect of any change in the children’s circumstances. The father proposed a number of changes. He gave up seeking an order for defined time in the end so they are only small changes but they include consultation in relation to parental responsibility, no passport, no travel; and time as determined by the mother if she thinks it is safe. The children are not spending time with the father at the moment so the mother’s proposal for a no time order will not result in a change for them. The only changes she proposed were in relation to passport and travel and change of surname. I am not going to make any comment on the likely effect of any of those changes at the moment. I will weave that into my conclusion. The first major issue in this case is the issue of the father’s parenting capacity. I have read the Relationships Australia notes concerning the father’s interaction with the children at Relationships Australia. By and large he has played and interacted appropriately with them there. He has sometimes had a bit of trouble trying to settle [X] but he was able to divide his time between the children and be appropriate with them. However that does not take me very far because the fact that people can play nicely with children in a supervised setting does not necessarily mean they have the capacity to parent the children in a broader sense, and in this particular case there are two issues which mean that the father lacks parenting capacity and they are his drug use and the family violence. Dealing first with drug use, the mother said that during the relationship the father told her he was using drugs but she never saw him doing so. Her concern was that he spending huge amounts of time at the pub. The father admitted to the family report writer that he was using drugs during the relationship. The family report writer said as follows: Mr Ethington acknowledged that he has used cannabis, amphetamines, ecstasy and cocaine on a recreational basis, whilst stating that it was never with children around. He further indicated that he has never been an IV user, whilst stating that during the parents’ relationship that he would have used amphetamines every two months. It remains unknown as to whether the father had any “ice” use during that period.[6][6] Paragraph 33 of the Family Report. There is a drug test in doctor’s records from early 2016 where the father tested positive to MDMA or ecstasy.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Some of them do not help much anyway. One of the additional considerations is the extent to which each party has taken or failed to take the opportunity to spend time with the children, communicate with the children or to take part in decision-making about the children. The mother has been a good and reliable carer for the children. The father has not spent much time with them but that is due to the issues of drug use and his behaviour so that consideration does not assist me on its own. I must consider the financial support of the children. The mother is pretty much solely supporting the children. The father may be paying a small amount from his Centrelink benefits but it would not go very far if he is. However this case does not turn on whether the father is paying child support. I must consider the maturity, sex and background and other characteristics relevant to the children. That does not help me either as a separate consideration other than to comment as I often do that children of this age are completely defenceless against violent behaviour by adults or neglect or abuse due to drug use. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents. That does not help me either. Things that might come under that heading I will discuss in other parts of the judgment. I must consider the likely effect of any change in the children’s circumstances. The father proposed a number of changes. He gave up seeking an order for defined time in the end so they are only small changes but they include consultation in relation to parental responsibility, no passport, no travel; and time as determined by the mother if she thinks it is safe. The children are not spending time with the father at the moment so the mother’s proposal for a no time order will not result in a change for them. The only changes she proposed were in relation to passport and travel and change of surname. I am not going to make any comment on the likely effect of any of those changes at the moment. I will weave that into my conclusion. The first major issue in this case is the issue of the father’s parenting capacity. I have read the Relationships Australia notes concerning the father’s interaction with the children at Relationships Australia. By and large he has played and interacted appropriately with them there. He has sometimes had a bit of trouble trying to settle [X] but he was able to divide his time between the children and be appropriate with them. However that does not take me very far because the fact that people can play nicely with children in a supervised setting does not necessarily mean they have the capacity to parent the children in a broader sense, and in this particular case there are two issues which mean that the father lacks parenting capacity and they are his drug use and the family violence. Dealing first with drug use, the mother said that during the relationship the father told her he was using drugs but she never saw him doing so. Her concern was that he spending huge amounts of time at the pub.

Ratio Decidendi

Legal Principle Established

I am going to start with the additional considerations and I am going to consider them out of order, because to make this judgment flow they need to be considered out of order. Some of them do not help much anyway. One of the additional considerations is the extent to which each party has taken or failed to take the opportunity to spend time with the children, communicate with the children or to take part in decision-making about the children. The mother has been a good and reliable carer for the children. The father has not spent much time with them but that is due to the issues of drug use and his behaviour so that consideration does not assist me on its own. I must consider the financial support of the children. The mother is pretty much solely supporting the children. The father may be paying a small amount from his Centrelink benefits but it would not go very far if he is. However this case does not turn on whether the father is paying child support. I must consider the maturity, sex and background and other characteristics relevant to the children. That does not help me either as a separate consideration other than to comment as I often do that children of this age are completely defenceless against violent behaviour by adults or neglect or abuse due to drug use. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents. That does not help me either. Things that might come under that heading I will discuss in other parts of the judgment. I must consider the likely effect of any change in the children’s circumstances. The father proposed a number of changes. He gave up seeking an order for defined time in the end so they are only small changes but they include consultation in relation to parental responsibility, no passport, no travel; and time as determined by the mother if she thinks it is safe. The children are not spending time with the father at the moment so the mother’s proposal for a no time order will not result in a change for them. The only changes she proposed were in relation to passport and travel and change of surname. I am not going to make any comment on the likely effect of any of those changes at the moment. I will weave that into my conclusion. The first major issue in this case is the issue of the father’s parenting capacity. I have read the Relationships Australia notes concerning the father’s interaction with the children at Relationships Australia. By and large he has played and interacted appropriately with them there. He has sometimes had a bit of trouble trying to settle [X] but he was able to divide his time between the children and be appropriate with them. However that does not take me very far because the fact that people can play nicely with children in a supervised setting does not necessarily mean they have the capacity to parent the children in a broader sense, and in this particular case there are two issues which mean that the father lacks parenting capacity and they are his drug use and the family violence.