FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Harries & Harries [2022] FedCFamC1F 1009
File number(s): BRC 2492 of 2021 Judgment of: CAREW J Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – PARENTING – unacceptable risk of harm – where mother ceased contact between children and father from November 2020 to June 2021 due to allegations of sexual abuse/sexual interference/inappropriate touching – where mother had asserted father is an unacceptable risk of harm arising from inappropriate sexual touching and family violence – where mother capitulated midway through final submissions and consented to the immediate resumption of unsupervised time – where allegations of inappropriate sexual touching are groundless – where mother found to have ‘weaponised’ the allegations of sexual abuse and family violence against the father to limit his relationship with the children – where children have been deprived of a meaningful relationship with their father for spurious reasons – where the father and family report writer expressed concern for the children’s home schooling environment and the mother’s permissive parenting style – where the mother is implacably opposed to the children attending mainstream schooling – where the mother is an unacceptable risk of emotional and psychological harm to the children – where the Court orders sole parental responsibility to the father and the children will live with the father – where the mother will spend alternate weekend and holiday time with the children following a period of supervision Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC93-637
Briginshaw v Briginshaw (1936) 60 CLR 336
Eastley & Eastley [2022] FedCFamC1A 101
Isles and Nelissen [2022] FedCFamC1A97
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 250 Date of hearing: 14 – 17 November 2022 Place: Brisbane Counsel for the Applicant: Mr J. Linklater-Steele Solicitor for the Applicant: Best Wilson Buckley Family Law Counsel for the Respondent: Ms K. Gover Solicitor for the Respondent: DME Law Counsel for the Independent Children's Lawyer: Mr A. Ehlers (on 14, 15, 16 November 2022) Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDER
BRC 2492 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARRIES
Applicant
AND: MS HARRIES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
16 December 2022
THE COURT ORDERS THAT:
1.Mr Harries (“the father”) shall have sole parental responsibility for making decisions relating to the major long-term issues for the children, X, born … 2011, and Y, born … 2013, and Z, born … 2019.
2.In exercising sole parental responsibility in accordance with paragraph 1 herein, the father shall inform Ms Harries (“the mother”) of any decisions he proposes to make and consider any views expressed by the mother prior to making such decisions.
3.The mother shall comply…
Continue reading Harries & Harries
Sign in free to access the full text
Details
- AGLC
- Harries & Harries [2022] FedCFamC1F 1009
- Case
- [2022] FedCFamC1F 1009
- Decision Date
CaseChat Overview and Summary
In the matter of Harries & Harries, the court was required to determine the best interests of three children following the separation of their parents, the mother and father. The parents had been married and had three children together, born in 2011, 2013, and 2019. The mother was the primary carer for the children, while the father was employed in the transport industry. The father proposed to take leave from his employment to care for the children and had the support of his partner. The mother was opposed to the children attending mainstream schooling and had a permissive parenting style, which raised concerns about the children’s welfare.
The court had to decide whether one parent should have sole responsibility for decisions concerning the children’s education and health, and what parenting order would best meet the needs of the children. The parents and Independent Children’s Lawyer submitted that one parent should have sole responsibility for major long-term issues concerning the children’s education and health. The court agreed and found that the parent with primary care of the children should have sole responsibility for such decisions but should still inform the other parent of the decision to be made and seek their input. The court also had to determine the best parenting order for the children, considering their close and loving relationship with both parents and the unacceptable risk of harm posed by the mother. The court found that the father did not pose an unacceptable risk of harm to the children, while the mother did. However, the court considered that the risk posed by the mother could be ameliorated by imposing supervision on her time with the children for the first six months, followed by unsupervised daytime and later overnight time and holidays.
The court concluded that the children’s best interests would be met by living with the father, with the mother spending time with them each alternate weekend after the initial period of supervision. The court found that the permissive parenting style of the mother was a source of considerable concern and that the children would benefit from having an ongoing meaningful relationship with both parents. The court also noted that the reduction in the children’s time with the mother would give them time to settle in the father’s household, without undue pressure or undermining from the mother, and to transition into mainstream schooling, which was expected to commence in first term 2023. The court made orders for the children to live with the father and for the mother to have supervised time with them each alternate weekend for the first six months, followed by unsupervised daytime and later overnight time and holidays. The mother was also ordered to facilitate the children’s transition into mainstream schooling.
The court had to decide whether one parent should have sole responsibility for decisions concerning the children’s education and health, and what parenting order would best meet the needs of the children. The parents and Independent Children’s Lawyer submitted that one parent should have sole responsibility for major long-term issues concerning the children’s education and health. The court agreed and found that the parent with primary care of the children should have sole responsibility for such decisions but should still inform the other parent of the decision to be made and seek their input. The court also had to determine the best parenting order for the children, considering their close and loving relationship with both parents and the unacceptable risk of harm posed by the mother. The court found that the father did not pose an unacceptable risk of harm to the children, while the mother did. However, the court considered that the risk posed by the mother could be ameliorated by imposing supervision on her time with the children for the first six months, followed by unsupervised daytime and later overnight time and holidays.
The court concluded that the children’s best interests would be met by living with the father, with the mother spending time with them each alternate weekend after the initial period of supervision. The court found that the permissive parenting style of the mother was a source of considerable concern and that the children would benefit from having an ongoing meaningful relationship with both parents. The court also noted that the reduction in the children’s time with the mother would give them time to settle in the father’s household, without undue pressure or undermining from the mother, and to transition into mainstream schooling, which was expected to commence in first term 2023. The court made orders for the children to live with the father and for the mother to have supervised time with them each alternate weekend for the first six months, followed by unsupervised daytime and later overnight time and holidays. The mother was also ordered to facilitate the children’s transition into mainstream schooling.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
After careful consideration of the entirety of the evidence and for reasons which will become apparent, I find that the children’s best interests will be met by them living with their father and spending time with their mother each alternate weekend after an initial period of supervision. BACKGROUND The mother and father commenced a relationship in 2006 and married in 2011. They separated on 3 August 2018 (although there may have been earlier separations) and divorced on 29 May 2020. However, there were a number of attempts to reconcile both before and after the divorce. There was no further attempted reconciliation after July 2020. There are three children of the relationship. X is 11 years of age and was born in 2011, Y is nine years of age and was born in 2013 and Z is three years of age and was born in 2019. The father is 47 years of age. He works in the transport industry three to four days per week with an average weekly income of approximately $1,090. The father proposes to take three months leave from his employment in the event the boys commence to live with him. The father is fully supported in his proposal for the boys to live with him by his partner Ms F (“Ms F”). The father and Ms F commenced their relationship in July 2021 and commenced to live together in mid-2022 in a four bedroom rental property in T Town, which is under an hour from the Brisbane central business district. Ms F has four daughters and several grandchildren. Only one of her children is under eighteen and lives with Ms F and the father. V is 14 years of age and spends time with her own father every fortnight. Ms F is 48 years of age and employed in allied health. The father also has a daughter from a previous relationship, W, who is 17 years of age. The father no longer sees W, there having been a break down in his relationship with W’s mother after X was born. W attended the parent’s wedding in Country U. Both X and Y are aware of W. The mother is 36 years of age and the primary carer for X, Y and Z. The mother was born in Country U and still has family there. The children are home-schooled by the mother. The mother had a brief live-in relationship with Mr G from mid to late 2020 to February 2021 and it seems there were attempts to rekindle the relationship after that time. Mr G was noted to be present on occasions when the mother delivered the children for supervised time with the father at B Contact Centre, which commenced in June 2021. The mother is not currently in a relationship. The mother relocated with the children in April 2022 to AA Town in the C Region, which is over one hour from the Brisbane central business district. It is common ground that the father became unwell in 2016 and was suffering from poor mental health. The father eventually sought medical intervention but was debilitated for at least six to twelve months and was supported by the mother, whom the father describes as “amazing” during this difficult time for the family. Subsequently, it seems the mother may also have suffered some form of breakdown. The mother was often in bed when the father arrived to see the children after separation and they would be fending for themselves. In a letter from Dr H to the mother’s GP dated 18 April 2018, he opines that the mother “is quite clearly suffering from depressed mood and anxiety at present”. The father took photographs of some of the rooms in her home on 8 April 2021. The place was a complete and utter mess. The father contends that he took the photographs because he was concerned about his children living in such unhygienic conditions. It might have been better if he had simply cleaned the place, or offered to pay someone to do it.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The mother remains implacably opposed to the children attending mainstream schooling such that even if I made such an order, I could have no confidence that the mother would embrace or facilitate such a move. Without full support for the children’s transition to mainstream schooling, in my view, it would be tantamount to setting it up to fail. SHOULD ONE PARENT BE SOLELY RESPONSIBLE FOR DECISIONS CONCERNING THE CHILDREN’S EDUCATION AND/OR HEALTH? The parents are poles apart on matters concerning most parenting matters but certainly education and health. According to Mr O, whose opinion I accept, the parents are “polarised in every sense of the word. There is no meeting of minds over any aspect of the children’s care [other] than perhaps their physical needs” and “they are parents who hold each other in the utmost disregard and there will never be a capacity to make joint decisions over any significant issue”. In his view, the mother “parents at the direction of the children. They are at liberty to suit themselves mostly, and their apparent inability to attend regular school is prefaced on her view of their emotional needs and the education system”. Both parents and the ICL submit that one parent should have sole parental responsibility for (at least) decisions concerning the children’s education and health. In my view, the parent with the primary care of the children should have sole parental responsibility for all major long terms issues as that term is defined in s 4 of the Act. That parent should still inform the other parent of the decision to be made and seek their input. WHAT PARENTING ORDER WILL BEST MEET THE NEEDS OF THE CHILDREN? The children have a close and loving relationship with both parents and will benefit from having an ongoing meaningful relationship with both parents. I have found that the father does not pose an unacceptable risk of harm to the children but that the mother does pose an unacceptable risk of harm. Despite that finding, I consider that the risk posed by the mother can be ameliorated by imposing supervision on the mother’s time with the children for the first six months and thereafter commencing unsupervised day time and later overnight time and holidays. The supervision and reduction in the children’s time with the mother will give the children time to settle in the father’s household, without undue pressure or undermining from the mother. Importantly, it will also give the children time to transition into mainstream schooling which will hopefully commence in first term 2023. Even if the risk posed by the mother were not unacceptable I would nevertheless change the primary care of the children because I conclude that their best interests will be met by living with the father. Whether it related to hairstyle, hair colour, wearing clothing or shoes, undertaking school work, spending time with the father, going to bed, having a bath etc., the mother has been entirely permissive with the children. It seems the mother makes no attempt to exert any parental authority unless it suits her purposes. As noted, the permissive parenting style is a source of considerable concern for Mr O, whose opinions and observations I have found most helpful.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.