Harrison & Harrison

Case [2023] FedCFamC1F 724

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Harrison & Harrison [2023] FedCFamC1F 724

File number(s): MLC 10386 of 2012
Judgment of: MCGUIRE J
Date of judgment: 24 August 2023; 1 September 2023 (Addendum)
Catchwords: FAMILY LAW – PARENTING – Third trial of parenting issues – Father concedes parental responsibility and ‘live-with’ to the mother but continues to assert her tendency to “assault children” and her consequent incapacity – Mother says father undermines her parenting – Mother’s late proposal to relocate to the United Kingdom – Fundamental issue of credit – Both parents not credible witnesses – Relocation not permitted – Time for children with the father  
Legislation:

Evidence Act 1995 (Cth) s 140

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

Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

KB & TC [2005] FamCA 458; (2005) FLC 93-224

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Paskandy & Paskandy [1999] FamCA 1889; (1999) FLC 92-878

Division: Division 1 First Instance
Number of paragraphs: 156; 4 (Addendum)
Date of last submissions: 28 July 2023
Date of hearing: 17, 18, 19 and 20 July 2023
Place: Melbourne
Counsel for the Applicant: Mr Scriva (with Mr Ng, solicitor, appearing at last submissions)
Solicitor for the Applicant: Pentana Stanton Lawyers
Counsel for the Respondent: Mr Byrne
Solicitor for the Respondent: Ella Thompson Legal
Counsel for the Independent Children's Lawyer: Ms Wiener
Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers

ORDERS

MLC 10386 of 2012

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

MR HARRISON

Applicant
AND:

MS HARRISON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

24 AUGUST 2023

THE COURT ORDERS THAT:

1.The mother have sole parental responsibility for the children V born 2013 and Y born 2010 (“the children”).

2.The children live with the mother.

3.The children spend time and communicate with the father as follows:

(a)From 9:00AM until 5:00PM on the first Saturday of each month;

(b)At such other times as might be agreed in writing, text message, or email between the parties from time to time;

(c)By the father sending to the children gifts, cards and letters by ordinary post to an address nominated by the mother with the mother to keep the father advised within seven days of any change of her nominated address.

4.The mother have leave to travel overseas with the children (or either of them) on one occasion each calendar year and for such duration that the mother be entitled to suspend only one period of time–with for the children with the father during each calendar year.

5.Should the father be required to give his consent to the children (or either of them) being removed from the Commonwealth of Australia for such holidays and does not give his consent within 14 days of the mother seeking such consent then…

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AGLC
Harrison & Harrison [2023] FedCFamC1F 724
Case
[2023] FedCFamC1F 724
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Harrison & Harrison involved a contentious dispute between the parents, originally from Country H, over the care and custody of their children, Y and V, born in 2010 and 2013 respectively. The parents had a tumultuous relationship marked by allegations of domestic violence and child abuse. The father had previously been found to have caused emotional harm to the children, while the mother was accused of assaulting the children, including an incident in January 2021 where she allegedly assaulted Y. The mother sought permission to relocate the children to the United Kingdom. The father opposed the relocation and sought sole parental responsibility for the children, arguing that the mother had engaged in child abuse or family violence, thus negating the presumption of equal shared parental responsibility.

The central legal issue before the court was whether the mother's allegations of abuse by the father and his family were credible, and whether the mother had indeed assaulted Y, which would influence the decision on parental responsibility and relocation. The court had to determine the credibility of the parties' evidence and the children's accounts, particularly in light of their changing statements over time. The court also needed to consider the children's wishes and preferences, which had varied and been equivocal, as well as the potential for further litigation if the children's views were to change as they grew older.

After carefully considering all the evidence, including the testimonies of the parties and the children, the court concluded that the mother had indeed assaulted Y, albeit over vigorous corporal punishment. The court also found that the father and his family had colluded with the children to abscond from the mother's home and fabricate the assault allegations. The court determined that the mother's proposed relocation to the United Kingdom was not in the best interests of the children, given the history of abuse and the need for stability and continuity in the children's lives. The court ordered that the children remain in Australia and that the father have sole parental responsibility. The mother was permitted supervised time with the children, subject to specific conditions designed to protect the children's welfare.

Orders

Orders of the court

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Background

Background to the litigation

The Court has had the benefit of an Independent Children's Lawyer whose position at the start of the trial was equivocal and perhaps understandable given the fundamental issue of credit infecting this entire matter. In final submissions the ICL was supportive of the mother’s case including the relocation.BACKGROUND The parties are originally from Country H. They immigrated to Australia in 2002 and commenced cohabitation that year, although claiming to have commenced a relationship as long ago as 1996. The now adult Q was born in 2003. The relevant children, Y and V, were born in 2010 and 2013 respectively. The parties married in 2002 when commencing cohabitation. They separated in late 2012 when the mother obtained an interim intervention order excluding the father from the former matrimonial home. He contemporaneously made a cross application for an intervention order against the mother and thus commenced a long and bitter history of litigation for these parties across various jurisdictions. The parties reconciled in late 2012, a matter of days after the father had then commenced proceedings in the Federal Circuit Court (as it then was). Alas, the reconciliation was short lived and the parties finally separated in early 2013. The final separation was accompanied by a report by the father to Victoria Police alleging that the mother had assaulted Q. The mother was arrested and removed from the former matrimonial home with the children remaining with the father. An interim order was made soon after for the children to live with the father and spend supervised time with the mother. Notably, V was born some months after the final separation. It is alleged that in early 2013 the mother assaulted Q and further later that month whilst attending a mediation with the father she allegedly struck the father. The mother was charged and the matter dealt with by Diversion. Between September and December 2014 a trial of 11 days proceeded before Judge Turner with judgment handed down on 4 June 2015 resulting in orders for equal shared parental responsibility but with the children to live with mother and spend four nights per fortnight with the father together with time in school holidays. In mid-2015 the mother consented without admission to a final intervention order for one year. Between December 2015 and April 2017, the father asserts further disclosures made by Y of being physically and emotionally abused by the mother. In April 2017, the father unilaterally over-held Y and issued new proceedings on 7 April 2017, later amending his initiating application on 18 July 2018 (being the applications eventually dealt with by Gill J). In that application the father sought orders that Q, Y and V live with him and that time for Y and V with the mother be reserved. On 3 May 2017 Judge Curtin in the Federal Circuit Court made interim orders returning the children to the mother. In late 2017 a state Magistrate made a final intervention order for a period of two years against the mother to expire in late 2019. The mother entered a Notice of Appeal.

Evidence

Evidence Before The Court

On 3 July 2023 the mother filed a further amended Response seeking that she be permitted to relocate the children to reside in the United Kingdom.THE EVIDENCE The father relied on three affidavits being 4 October 2022, 4 November 2022, and 11 July 2023. The father argues that the presumption of equal shared parental responsibility does not apply as there are reasonable grounds for the Court to find the mother has engaged in child abuse or family violence. He further concedes that there has been a finding by Gill J in 2019 that he himself caused emotional harm to the children. As such, the father does not oppose an order for the mother to have sole parental responsibility given what is now undisputed as to her delegated primary care for the two dependent children. He concedes the obvious, being a current and historical poor relationship between him and the mother. It is difficult to reconcile the father’s concessions as to sole parental responsibility and live-with orders to the mother with him maintaining that she has assaulted Y. Given Justice Gill’s finding in 2019 (which of course does not bind me on the factual platform now before me) the father argues, in any event, that the evidence does not support a finding that he and the paternal grandmother were involved in the children absconding from the mother’s home in January 2021 and argues that the Court should not and cannot make such a finding on the balance of probabilities pursuant to section 140 of the Evidence Act 1995 (Cth) with reference to the well-known Briginshaw principles.[2][2] Briginshaw v Briginshaw (1938) 60 CLR 336. The father says that the children had no direct or indirect contact with him around the relevant time in January 2021. He says that the children have given varying and inconsistent accounts as to their movements on that day and as to the motives for them leaving their mother’s home. The father argues that it is open for the Court to find the children’s retraction of the allegation that the mother had assaulted Y as plausible and explicable given the children had been returned to their mother's home as soon as January and that it is reasonable to suggest that she had induced the retraction by threatening her own imprisonment and the children going into foster care should they maintain their allegations. The father says that this scenario is not unreasonable in circumstances where the father says there is a history and a propensity in the mother to assault the children with a documented history of similar behaviour. In this respect the father relies on evidence from the children, now exhibited in these proceedings, which indicates the children being fearful of the mother being gaoled and them being put in foster care. The father says that he has been informed and alerted by Gill J’s judgment where he has since completed no less than three post separation courses and has gained the appropriate understanding and acknowledgement of his previous behaviour, demonstrated by there since being no relevant allegations against him of manipulation of the children other than that of January 2021.

Decision

Reasons for decision

In this matter the children’s wishes and preferences have varied or been equivocal. Notably, the letter from Independent Children's Lawyer dated July 2023 and now exhibited before me gives continued concern as to this equivocacy, where Y is noted as being settled in his current school and relationships but agreeing to relocate with the mother but where he has relatively recently expressed a strong desire to have a relationship with his father, now saying that he wants no such relationship where there is a likelihood of some further changing of the children’s views and preferences as they grow older, this would, of course, give potential to renewed litigation.FINDINGS AND CONCLUSIONS At the crux of this matter, as was indicated by Counsel, are the events of January 2021 which figure heavily in the arguments proffered by each of the parties and my determination. This is an issue of credit where each of the parties maintains a version of history so irreconcilable that first impressions indicate that one or the other is not a witness of the truth. In summary, the father asserts that the children voluntarily left the mother’s home after an assault by the mother on Y. The mother, for her part, denies any such assault and says the children were encouraged and manipulated by the father and/or the paternal grandmother to leave the mother's home and to fabricate the assault. The father and the paternal grandmother consistently deny these assertions. Nevertheless, perhaps ‘first impressions’ serve to deceive and on the balance of probabilities, with the benefit of considering all of the evidence and the considerable advantage of seeing and hearing the parties give their evidence in court, I conclude that each of the parents and the paternal grandmother have been less than forthcoming with the truth. That is, I conclude on the balance of probabilities the mother did assault Y and this perhaps over vigorous corporal punishments fits with a propensity for such disciplinary responses in the mother. Where such physical chastisement by a parent may not be illegal under state criminal codes in this country if rendered with reasonableness, such does attract the attention of international conventions on the rights of children and the interest of this Court. Consequently, I do not accept the denials of these allegations by the mother. Equally, however, I do not accept the denials of the father and paternal grandmother as to assertions of collusion with the children to have them abscond from the mother’s home and to make their way by public transport to the grandmother where I find she was assisted by her friend ‘Ms GG’ to hide the children away from the mother and the authorities. In reaching these findings I rely on the following where notably much of the ‘truth’ comes from the mouths of the children themselves: (i)The children retreated at an early stage from the allegation that the mother assaulting Y was the motivation for them absconding and that they did so separate from any enticement by the father or the paternal grandmother; (ii)Experienced Child Protection officers doubted, from initial assessments, the veracity of the children’s allegations of assault and rather placed the focus on involvement of the father with the children being returned to their mother just two days after their absconding and whilst the investigation remained open; (iii)Nevertheless, against this background and some 18 months later in July 2022 at the interviews for the Family Report, V at [54] spoke of her mother “occasionally using physical discipline”. Similarly, at this same time and also for the Family Report interviews, Y at [69] reported thus: [Y] was queried about the […] January 2021 incident, any incident occurring proceeding his decision to run away, he referred to being hit on the top of his head by his mother after he pushed his sister onto the couch. (iv)In March 2021 Y engaged in a 45 minute counselling consultation with the school psychologist, Mr EE. Subpoenaed and exhibited notes disclose Y saying “that his mother sometimes hits him when angry”. Notably, this revelation must be seen against the Child Protection notes of 15 July 2021 with Y “advising that [Ms Harrison] doesn't physically assault him”. (v)The father asserts that the children’s initial allegations of assault were withdrawn under inducement or threat by the mother to the effect that she would be imprisoned and the children sent to foster care unless they withdrew the allegations against her. There is some merit to the father’s claim having reference to a school note subpoenaed now exhibited in respect of the children disclosing:[Y] asked to speak to me at 3:30 PM on Thursday 4th February and said that he had lied to police about his grandmother's involvement and that she had encouraged them to run away. He said his father wasn't involved. He said that he didn't want to get his grandmother into trouble because she was his last living grandparent. He said that he was scared and that he did not want to go into foster care or leave the school and he did not want his mother to go to jail. [Y] said he was not sleeping well and felt very upset by everything. He said that his mother did hit him sometimes when he had been bad. He wanted me to contact Child Protection and let them know about the lie as he did not want his mother to get into trouble.(My emphasis added)(vi)Relevant as to the demeanour and temperament of the mother was a finding of guilt against her in respect of charges in 2013.

Ratio Decidendi

Legal Principle Established

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