Hanton & Rossi

[2021] FCCA 1589

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hanton & Rossi [2021] FCCA 1589

File number:

MLC 13202 of 2018

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

24 June 2021

Catchwords:

FAMILY LAW – Final parenting – where father withdraws – child to live with mother – father to spend time with child as agreed between parents – parental responsibility – limiting the extent of sole parental responsibility – final orders made.   

Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC

Federal Circuit Court Rules 2001 (Cth) r 16.05

Number of paragraphs:

26

Date of hearing:

24 June 2021

Place:

Melbourne

The Applicant:

No Appearance

Solicitor for the Respondent:

Mr D Crabtree of Comito and Associates

Counsel for the Independent Children's Lawyer:

Mr R Allen

Solicitor for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

MLC 13202 of 2018

BETWEEN:

MR HANTON

Applicant

AND:

MS ROSSI

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be and are hereby discharged.

2.The child X ('X') born in 2014 live with the Mother.

3.The Mother have sole parental responsibility for X, save in emergency and save for the issues of the child's name and country of residence, provided that the Mother, before making a decision relating to that parental responsibility:

(a)advise and consult the Father of any proposal by text message or email;

(b)consider any input from the Father if received in a timely manner; and

(c)inform the Father of the decision.

4.The Father be at liberty to send X letters, cards and gifts and the Mother shall ensure that X is given such material and encouraged to respond positively to the Father. 

5.If X expresses a desire to communicate with the Father by letter, card, gift, telephone or internet based communication, the mother shall provide X with the means to do so.

6.The Mother must ensure X is provided with the Father's telephone number for his independent use by age 11, if not provided beforehand and retained by X.

7.The Father otherwise spend time and communicate with X as mutually agreed between the parents.

8.The Mother and Father keep each other informed of their residential address and a contact telephone number and email address.

9.The Mother keep the Father informed of the school X's attends.

10.The Father is authorised and permitted to receive school reports for X, at his organisation and expense, and may access the See-Saw App or such other App the school may use to keep parents informed of their child's learning progress.

11.The Mother and Father are at liberty to provide a copy of these orders to any school X attends.

12.The Mother inform the Father in the event X suffers any serious illness or injury requiring hospitalisation or specialist treatment.

13.All applications be otherwise dismissed.

14.The appointment of the Independent Children's Lawyer is discharged.

15.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The Independent Children's Lawyer consent to the orders.  The Mother consented to orders 1-2 and 4-15 herein.  The Mother opposed the form of order 3.

B.These orders have been made in the absence of the Father and pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 the court may vary or set aside a judgment or order if it was made in the absence of a party.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Hanton & Rossi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are settled ex tempore reasons.  These proceedings concern X (‘the child’) who is 7, and his parents have never agreed about his living arrangements and the time that he should spend between households.  The Applicant Father is Mr Hanton (‘the Father’) and the Respondent Mother is Ms Rossi (‘the Mother’).  The third party to the proceedings is the Independent Children’s Lawyer.  There is considerable evidence by way of reports concerning the child’s welfare. 

2. The matter was listed for final hearing before me on 24 June 2021.  The proceedings had commenced in November 2018.  A complicated history of orders and arrangements for the child had been made for the purpose of him spending time with the Father.  The most recent incarnation of those orders were that the child would spend time with his Father each alternate weekend, with the changeovers to be at a supervised changeover centre. 

3. The Father's case is that the child’s behaviour in his care has been influenced by his Mother's negative attitude to him, and his Father alleges that the Mother and the Mother's family have attempted to alienate the child from him.  The child suffers or may suffer an auditory or sensory processing difficulty.  It is the Mother's position, and has been all along, that the Father's lack of education and sensitivity to that issue has inevitably created difficulties for the child and the Father when the child has been in the Father's care.

4. The parental relationship is further complicated by the fact that the parties never lived together in a de-facto relationship, and neither has been able to observe the other one actually care for the child as a baby, toddler, and a young boy. 

5. Each has profound distrust of the other. On 26 February 2019, pursuant to section 67Z of the Family Law Act 1975 (Cth) (‘the Act’), the Department of Health and Human Services, then as it was, provided a short statement or report to the court, that from the child protections point of view, there was no risk to the child in the care of either of his parents.

6. As part of the contested litigation, a psychologist, Ms B, examined and assessed each of the parents.  Ms B did not find that there was any aspect as to the parties' psychological state that would mean that they were not appropriate carers for the children, and the Mother was assessed as a parent to be of no risk as a parent to the child.  In the context of the Father's subsequent behaviour, I will focus more on the observations made about him, which have taken, recently, significant importance. 

7. In the report of Ms B for the Father dated 21 November 2019 at page 30 of 41 (of the affidavit filed by Ms B on 6 January 2020), the Father reported that X had negative complaints against him:  

   •“he hits me”

   •“you're the worst person”

   •“you're mean to my mummy”

   •“when I was 2, you screamed on the phone to my mummy”

   •“sad” 

8. At that time, the Father opined that such statements were a deliberate influence of the Mother against him.  At that time, the Father’s psychological state was described following testing, (the depression, and anxiety and stress scale were also administered) as any depression, stress or anxiety is well managed.  At the time of testing in the normal range.  The report of Ms B can only be described as positive to the Father. 

   Mr Hanton presents as a personable man who has understood the change in his life to be a father. This role identification has created a maturity in him which was evident in the session. He can be positional and judgmental. He was assessed as having some insight and understanding of stress, distress and compassion.

   His lack of commitment to Ms Rossi and to X, as identified by him, in the early stages of X’s development was mirrored on his own experience from separated parents.  He struggled with the separation and experienced his parents’ lack of commitment to each other.  His drug and alcohol use was also opportune in the music industry but also masked the pain of his family’s fragmentation.  His access to counselling and now stated abstinence shows the insight and maturation evidence in Mr Hanton.

   He was often positive about Ms Rossi regardless of her negativity towards him. He was assessed as understanding the appropriate behaviours in a child, the hygiene issues, the developmental issues and the compromised behaviour he had seen in Ms Rossi.

   …

   Mr Hanton is aware of his own shortcomings although harbors some self-doubt. He has capacity to learn and be supportive. He is however distressed by the behaviour of Ms Rossi and her family. He feels judged, scrutinized and criticised by them without cause.

   He has an underlying strength and capacity to manage the acrimony. He shows appropriate child focused concern about the negative exposure to which X has been subjected. He was also assessed as understanding the impact of acrimony and negative exposure on children and showed insight into the management his own response to X.

   …

   The assessment has shown no psychopathology evident. The Deception scales also showed no significant hypocrisy, although Mr Hanton overstates how he manages issues, suggesting an underlying sense of some insecurity.

   From the assessment Mr Hanton showed no issue regarding creating any risk and he is child focused and able to understand the responsibilities of parenting.

9. I will now move forward to more recent events.  We know from exhibit C2, which is a report of the children's contact service C Contact Centre dated 15 June 2021, that on 10 April 2021 the Mother delivered the child to the changeover service for changeover.  The Father collected him and returned him at the end of that time.  There was no remarkable observations in regard to that last visit. 

10. As part of the litigation process, the parties came before a family consultant for the preparation of a family report.  The report interviews were over 13 April 2021 by telephone and then observations were made for Melbourne registry on 15 April 2021.  The report showed that the interaction between the child and his Father was problematic in important aspects, but also showed an underlying connection between Father and son.  Paragraphs 67 to 75 of the Family Report are recited below:

    OBSERVATIONS OF INTERACTIONS

    Mr Hanton and X

    67.As X and the writer entered the waiting area, X ran up to his mother, gave her a hug and returned to the door at the same time as Mr Hanton was greeting the writer.  X ignored Mr Hanton’s greeting and lead him to the play area.

    68.Mr Hanton attempted to engage X in conversation and asked him what he wanted to play with in the playroom.  X requested Mr Hanton tell one of his “terrible jokes” however Mr Hanton tried to redirect X to play a game or do another activity available in the playroom.  For the initial stages of their interaction, X was sitting or standing close to the writer, with Mr Hanton sitting in a child’s seat near the table approximately one metre away.

    69.Eventually Mr Hanton found a joke he located on the Internet and X decided to sit next to him at the table and write the joke as he was speaking it.  The interaction between X and his father during the shared activity appeared natural and effortless, with X accepting his father’s directions and suggestions about his writing.  Both X and Mr Hanton appeared relaxed and attuned to each other’s actions and communications.

    …

    71.Mr Hanton then suggested they pack the writing material away, and attempted to pick X up a second time, however X rejected this display.  X wanted to use the “textas” to write on Mr Hanton’s hand, and although he attempted to redirect X, Mr Hanton allowed him to draw on his hand once.  X wrote the word “hate” on his hand, which was met with resistance from Mr Hanton as he was explaining “hate” was not a positive word that he wanted on his body. 

    72.X’s level of activity began to increase as the more Mr Hanton resisted him writing more on his body, the more dysregulated X appeared to become.  X was stating to his father that his father hated him, and Mr Hanton was refuting that, stating to X that he loved him.  X’s level of distress increased and Mr Hanton’s presentation also shifted, to a point where he appeared unsure of how to de-escalate the situation.  Mr Hanton attempted to redirect or distract X with other activities in the room, however this appeared to fuel X’s anger and he began yelling, stating to his father “don’t lie” “you hate me”, or words to that effect.

    …

    74.X, Mr Hanton and the writer left the playroom in order for Mr Hanton to leave and Ms Rossi to attend for her observation.  While walking through the corridor X continued to disparage Mr Hanton with Mr Hanton ignoring what X was saying and reiterated that he was looking forward to seeing him on the coming weekend.  Mr Hanton’s presentation indicated a sense of hurt and deflation in his body language and facial expressions.

11. The next regular time for the child to spend with his Father was the Saturday of 24 April 2021. The supervision notes show as follows:

    2.47pm, Mr Hanton informed the service that X wanted to be dropped off early at 4.00pm.

    2.49pm, Ms Rossi was informed that X wanted to be picked up early and that she should arrive at 3.45pm for a 4.00pm pick up.  3.50pm, phone call to Ms Rossi to assess when she would be arriving at the service. Ms Rossi stated that she thought she was meant to return at 5.00pm. Ms Rossi said she would be at the service by 4.30pm.

    3.54pm, the worker informed Mr Hanton that Ms Rossi would be arriving at 4.30pm.  4.10pm, Mr Hanton and X arrived at the service. Mr Hanton stated that he wanted to leave, the worker explained that as Ms Rossi was not at the service, Mr Hanton would have to wait until Ms Rossi arrived. Mr Hanton stated he had enough, wanted to leave and he did not want to continue with visits anymore. As Mr Hanton spoke to the worker he began to cry. Mr Hanton agreed to wait with X and the worker gave X some toys to play with.

    4.27pm, Ms Rossi arrived at the service. The worker walked X back to Ms Rossi and Ms Rossi asked X what happened. X said he would tell her outside as he glanced towards the worker.  The family left the service.

    Mr Hanton informed the worker that he will take some time to think about the situation and get some support.  Mr Hanton will then update the service regarding future arrangements.  At the appropriate time, Mr Hanton was allowed to leave the service.

12. Following 24 April 2021, the Father has not seen the child again.  On 7 May 2021 the Father communicated with the Independent Children's Lawyer to report a description of the child as follows:

    X was heightened again and relayed a negative narrative for the entirety of the visit. X spoke rudely to myself, my partner and the children and appeared to be out of sorts. X requested to leave continuously despite our best efforts to calm him and assist him with feeling comfortable. This has been deeply disappointing due to the great progress that has been made over the last 2-3 years. 

    After speaking with family and other stakeholders and professionals I have decided to forgo this weekend’s visit as it will likely be a negative experience for X, and the other children. 

13. On that day, 7 May 2021, the Father advised the changeover service that he was cancelling the changeover that was scheduled for the following day.  On 20 May 2021, the family report was released.  On the same day as the family report was released to the parties, including the Father, and I am not sure which happened first, the Father emailed the supervision service and advised that he would be, “forgoing further visits with X until the final hearing”.

14. On 17 June 2021 there was a compliance check for this hearing.  The parties attended and the Father attended via telephone hook-up.  Prior to that, on 15 June 2021, there had been a discussion between the Father and the other party's lawyers as to whether the matter would be able to be resolved by agreement.  At the compliance check, I was told that it was likely that there would be only interim orders made, and that at least one of the parties was seeking interim orders. 

15. On 18 June 2021 the Mother filed a Notice of Child Abuse, Family Violence or Risk in the proceedings, and on 16 June 2021 the Mother filed a long and detailed affidavit, where she set out events and the child’s welfare from her point of view. 

16. The history that the Mother recounted included that she had found, and I will quote paragraph 47:

    [47]…the Father had become increasingly angry and nasty towards X directly, and that I then decided that contact could not continue due to my concerns in relation to X’s mental health. 

17. The Mother opined that the child was happier when he was not seeing his Father at all.  Subsequent to that, limited time was reinstated. 

18. On 22 June 2021, the Father emailed the court and the parties to advise that he was not participating further marked as C1.  The email stated:

    To whom it may concern,

    I am writing to withdraw from the hearing scheduled to take place on Thursday June 24.

    I have read the affidavit and notice of risk submitted by the Mother and am of the view that proceeding with the hearing is of no use and have come to accept that the Mother will not stop in her efforts to alienate my son X from me.

    The affidavit and notice of risk are both offensive, untrue and slanderous toward my efforts to build a relationship with my son over the past 3 years since her period of no contact. The Mother has also falsely implicated my partner in these accusations.

    Despite my best efforts the Mother has objected to suggestions made for access, sought to withhold time and aggressively complained when supervisors have suggested otherwise. It has been made incredibly difficult for X to enjoy the limited time he has allocated to spending with me.

    The matter of parental alienation has been raised on multiple occasions since the F-11 report 3 years ago, through Child Protection involvement, through the Family Contact Service supervisors, and also in the Family Report. It is my view that the damage has been so severe to X that the only action I can take to protect him from further abuse is to withdraw from the hearing and subsequent visits until he is of age to make his own mind up about his involvement with me. 

    Further, due to the nature of the allegations made by the Mother in the notice of risk I will not be attending the court on Thursday in person for safety reasons. It has been previously stated in an affidavit that the Step-Father of the Mother has threatened to kill me and I am not willing to be in the same vicinity as them and cannot be guaranteed safety that he will not be in the vicinity of the court.

    My apologies for any inconvenience caused to the court. I can be reached on the phone on Thursday for a brief period should the judge wish to speak with me. If necessary, please advise what time I would need to be available and I can make arrangements.

    Kind Regards,

    Mr Hanton

19. On 24 June 2021, when the matter was called on, there was no appearance by the Father. 

20. The reality of life is that parenting requires persistence.  The Father has re-partnered, has another child, and his partner has another child.  The child has complained in the family report of the interaction between himself and the other child.  On the face of the Father's communication and behaviour on 24 April 2021, the Mother's description of that as an "emotional breakdown" appears entirely accurate.  I am concerned that the Father may have had more than an emotional breakdown and that there may be some psychological sensitive or vulnerability in his personality. 

1. On the other hand, the email communication to the court contained in C1 is articulate and does not suggest psychological or psychiatric ill health.  In all those circumstances, the Independent Children’s Lawyer and the Mother have presented a minute of proposed final orders which, save for some minor details, I propose to make. 

2. The further decision may be in the child’s best interests.  The child’s behaviour must be profoundly distressing to him and I infer he has despaired when considering whether to continue to put the child, himself and his family through more of those affidavit events. 

3. I discussed with the Mother’s counsel and the Independent Children’s Lawyer some qualifications to the order that the Mother have sole parental responsibility.  An order for sole parental responsibility without qualification would include sole parental responsibility for major long term issues, and I will repeat in the orders a, b, c, d, and e to a degree, the orders proposed, and I will be reciting in the orders, deal with those matters to a degree.  

   major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   (a)       the child’s education (both current and future); and

   (b)       the child’s religious and cultural upbringing; and

   (c)       the child’s health; and

   (d)       the child’s name; and

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

4. I proposed to the Mother's solicitor and to the Independent Children’s Lawyer that the order for sole parental responsibility be qualified as follows:

   3.The Mother have sole parental responsibility for X, save in emergency and save for the issues of the child's name and country of residence, provided that the Mother, before making a decision relating to that parental responsibility:

   (a)       advise and consult the Father of any proposal by text message or email;

   (b)       consider any input from the Father if received in a timely manner; and

   (c)       inform the Father of the decision.

5. The Mother's solicitor took instructions from the Mother and opposed that qualification.  She does not wish to provide the Father with any further information than what is absolutely necessary by the orders as proposed, because from her point of view and she says the Father will use any degree of information to infiltrate her life.  I am unable to conclude whether that is correct or not, but I do not dismiss it or find that it is not a genuinely held view. 

6. However, in all the circumstances, I find that it is the child’s best interest to qualify the order for sole parental responsibility, as I have discussed.  I note that the Independent Children’s Lawyer supported those qualifications.  Mr Crabtree (solicitor for the Mother) raised with me the difficulty of a passport, and I have no difficulty also ordering that the Mother have sole responsibility for the issue of obtaining or renewing a passport.  I take into account all of the provisions in Part VII of the Family Law Act 1975 (Cth), and in particular section 60CA, best interest being the paramount consideration, and section 60CC (1), (2), and (2A). As I advised Mr Crabtree and Mr Allen (counsel for the Independent Children’s Lawyer), I propose to refer in the orders to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth). Thank you.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       19 July 2021