Hargraves and Ivory - [2017] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARGRAVES & IVORY

[2017] FCCA 816

Catchwords:
FAMILY LAW – Parenting – child aged 3 – dispute about the child’s time with the father – where the mother alleges that the father engaged in coercive and controlling family violence and seeks a no time order – where the father admits two aggressive actions but says his actions were understandable on each occasion and denies being a perpetrator of family violence – where the father says that the mother has fabricated the allegations to keep him away from the child due to jealousy and separate anxiety and the influence of the maternal grandparents – where the court accepts the mother’s evidence – whether the child would be at unacceptable risk of harm if he spent time with the father – relevance of other factors such as the impact on mother of an order for time and the role model the father will be for the child – no time order made.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA

Cases cited:

Churchill & Wileman(No.2) [2016] FCCA 107
Chalmers & Chalmers [2015] FCCA 2103
Mazorski & Albright (2007) FamCA 520
Percy & Dickens [2016] FCCA 2244
Pitman & Bond [2014] FCCA 2126
Weekes & Pitcher(No.2) [2016] FCCA 2486

Applicant:

MR HARGRAVES

Respondent:

MS IVORY

File Number:

NCC 3279 of 2015

Judgment of:

Judge Terry

Hearing dates:

10, 11 and 12 April 2017

Date of Last Submission:

11 April 2017

Delivered at:

Newcastle

Delivered on:

26 April 2017

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Jennifer Blundell & Associates

Counsel for the Independent Child’s Lawyer:

Mr Davies

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

The mother shall have sole parental responsibility for the child X born (omitted) 2013 (“the child”).
The child shall live with the mother.
The father shall spend no time with and have no communication with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3279 of 2015

MR HARGRAVES

Applicant

And

MS IVORY

Respondent

REASONS FOR JUDGMENT

Introduction

X, 3½, has spent little time with his father since his parents separated when he was 18 months old. He has recently had three two hours visits with him supervised at a Children’s Contact Centre.
The father seeks orders that after a further short period of supervised time X commence spending unsupervised time with him. He is willing to start slowly with a few hours at a time and build up to his desired outcome which is that X spend time with him each alternate weekend from Friday to Monday and for half the school holidays once he commences school.
The issue in the case is family violence.
Although the father did not characterise them as such he made a couple of admissions about…

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 Hargraves and Ivory

Details

AGLC: Hargraves and Ivory [2017] FCCA 816
Case: [2017] FCCA 816
Decision Date: 26 April 2017

CaseChat Overview and Summary

In *Hargraves and Ivory*, heard by Judge Terry, the dispute concerned parental responsibility and living arrangements for a child, X, born in 2013. The orders sought and ultimately made involved the mother having sole parental responsibility, the child living with the mother, and the father having no time or communication with the child.

The court was required to determine the best interests of the child, X, by considering various factors under relevant legislation. These included the child's age and capacity to express a view, the nature of the child's relationships with each parent and other significant persons, the extent to which each parent had fulfilled their obligations to maintain the child, and their participation in decision-making and spending time with the child. The court also had to consider the likely effect of any change in the child's circumstances and the impact on the mother of any order for the child to spend time with the father.

Judge Terry reasoned that X, being only three years old, was too young to express a view. The court found that the mother had been the primary and sole carer since birth and separation, and that she and X shared a loving and well-developed relationship. While X had some positive interactions with the father during supervised contact visits, these were limited and X did not appear to recognise him initially. The court noted the mother was financially maintaining the child and that the father had not participated in decision-making or spent significant time with X since separation, though this was not presented as his choice. The court accepted evidence regarding the potential negative impacts of a lack of parental relationship but also the mother's evidence that X was not currently impacted by his father's absence. Crucially, the court found that the mother would be highly distressed by an order for X to spend time with the father, and this distress was visibly apparent during the hearing.

The court ordered that the mother shall have sole parental responsibility for the child, that the child shall live with the mother, and that the father shall spend no time with and have no communication with the child.

Orders

Orders of the court

The mother shall have sole parental responsibility for the child X born (omitted) 2013 (“the child”).

The child shall live with the mother.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The first of the additional considerations is any views expressed by the child and the weight to be given to those views. X is 3 and is too young to express a view. I must consider the nature of the child’s relationship with each of his parents and any other person including a grandparent of the child. The mother has been X’s primary carer since his birth and has been his sole carer since the parties separated. The family consultant observed that the mother and X:Presented with a loving and well developed mother and child relationship.[24][24] Paragraph 89 of the Family Report. X is also reported to have and was observed by the family consultant to have a good relationship with the maternal grandparents. X did not see the father at the family report interviews. The contact centre notes show that he did not recognise the father on the first visit on 10 February 2017 but played happily with him and on the second visit he went straight to the father at the start of the visit. It took some time for him to allow the father to join in his play on this visit but he eventually did so and the visit ended happily with a hug. On the third occasion X went down the hall to meet the father and they played during the session. These visits establish that X is not afraid of the father although that could be because he simply does not remember him. His relationship with the father at present is extremely limited. I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child. The mother is financially maintaining the child. The payment or otherwise of child support by the father was not raised as an issue during the proceedings. I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child. This is not a relevant issue. The father has spent little time with the child since separation and has not participated in decision making but that is not of his choice. I must consider the likely effect of any change in the child’s circumstances including the likely effect of separation from his parents or any other child or person including any grandparent or other relative of the child with whom he has been living. Counsel for the Independent Children’s Lawyer elicited evidence from the family report writer about the negative impacts on a child of not having a relationship with a parent. I accept that these outcomes are possible although I also accept the mother’s evidence that at his present age the absence of his father from his life is not impacting on X. I am required to take into account the impact on the mother of an order that the child spend time with the father. It was the mother’s case that she would be highly distressed if required to comply with an order that X spend time with the father. There was no independent evidence about her mental state because I did not allow Ms K’s affidavits in but she was visibly distressed at times during the hearing.