Haward & Haward

Case [2023] FedCFamC1F 47

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Haward & Haward [2023] FedCFamC1F 47

File number: SYC 6259 of 2018
Judgment of: REES J
Date of judgment: 9 February 2023
Catchwords: FAMILY LAW – Parenting – The mother seeks an order for sole parental responsibility and that the child live with the mother – The father seeks equal shared parental responsibility and a week about arrangement – Where the mother has been subjected to family violence by the father – Where the child has witnessed family violence between the parents and between her adult brother and the parents – Where the child has developed significant anxiety – Where the adult brother has ongoing mental health difficulties – Where the father denies being a perpetrator of family violence – Expressed views of the child – Orders made for the mother to have sole parental responsibility relating to the child’s education – Orders made for the father to spend time with the child once a week with no overnight time – Costs for the ICL.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC
Division: Division 1 First Instance
Number of paragraphs: 158
Date of hearing: 31 January – 3 February 2023
Place: Sydney
Counsel for the Applicant: Ms Spain
Solicitor for the Applicant: Santone Lawyers
Counsel for the Respondent: Mr Hodgson
Solicitor for the Respondent: Cameron Legal
The Independent Children’s Lawyer: Ms Karagiannis, Legal Aid NSW

ORDERS

SYC 6259 of 2018

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

MS HAWARD

Applicant
AND:

MR HAWARD

Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:

REES J

DATE OF ORDER:

9 February 2023

THE COURT ORDERS:

1.That the child X born 2011 live with the mother.

2.That the mother have sole parental responsibility for decisions relating to X’s education and that she advise the father of the decisions she makes within a reasonable time.

3.That X spend time with the father as agreed between the parents and, in the absence of agreement, each Sunday from 10.00 am until 5.00 pm, the mother to deliver X to the father’s residence and the father to return her to the mother’s residence.

4.That, in addition to the time specified in Order 3, X spend time with the father:

(a)On Christmas Day from 10.00 am to 5.00 pm.

(b)On X’s birthday, and the father’s birthday, if a school day, from after school until 6.00 pm, the father to collect X from school and return her to the mother’s residence or, if a non-school day, from 10.00 am to 2.00 pm, the father to collect and return X at the mother’s residence.

5.That X have telephone communication with the father as agreed and, absent agreement, each Tuesday and Thursday not earlier than 6.00 pm and not later than 6.30 pm.

6.That X’s time with the father is suspended:

(a)On Mothers’ Day.

(b)For two consecutive Sundays in the summer school holidays (not including Christmas Day) at the end of Term 4 if the mother wants to take…

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Haward & Haward [2023] FedCFamC1F 47
Case
[2023] FedCFamC1F 47
Decision Date

CaseChat Overview and Summary

The matter of Haward & Haward involved the parents, who had physically separated, and their daughter X. The mother sought to limit the father’s contact with X, citing concerns about past violence, the father's viewing of pornographic material, and the risk posed by Mr B, the mother's boyfriend. The father, on the other hand, argued that there was no risk to X in his home and that any anxiety X had about staying overnight with him was outweighed by the benefit of extended time with him. The court was tasked with determining the appropriate living arrangements for X, considering the primary considerations set out in s 60CC(2) of the Act, which include the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm.

The court considered the evidence presented, including the expert report by Dr L, who recommended joint parental responsibility for X but advised against overnight stays due to X’s fear of violence. Dr L's report highlighted X's anxiety stemming from witnessing past violence and her concerns about future incidents. The court also examined the evidence of Ms P, the psychologist, who was treating X for anxiety related to separation from her mother and other issues. The father proposed a solution to keep Mr B away from the home during X's visits, but the court found this proposal unreasonable and impractical, given the father's lack of control over Mr B's residence and the potential harm to Mr B and X's relationship.

In its decision, the court weighed the primary considerations and determined that the need to protect X from harm, as outlined in s 60CC(2)(b), outweighed the benefit of having a meaningful relationship with both parents. The court found that X had already been exposed to violence and was at risk of further harm if she stayed overnight with the father. The court concluded that the father's denial of past violent behaviour and lack of action to address his anger issues were significant factors in its decision. The court also noted the absence of evidence that the father had taken steps to mitigate his violent tendencies.

The court ordered that X should not spend overnight time with the father, taking into account her fears and the psychological impact of past violence. The final orders aimed to ensure X's safety and well-being while allowing for supervised contact with the father during the day. The court's decision underscored the importance of protecting children from exposure to violence and the need for parents to address their behaviours to foster a safe environment.

Orders

Orders of the court

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Background

Background to the litigation

The court was assisted by an Independent Children’s Lawyer (“ICL”) for X and by a single expert psychiatrist, Dr L who prepared a report dated 20 October 2020.BACKGROUND The parents physically separated on 7 September 2018 when the mother left the home at Suburb M with X and went to a refuge. The father and Mr B remained in the home. On 28 September 2018, the mother filed initiating proceedings seeking interim orders for sole occupation of the home and that the children live with her. On 15 October 2018, orders were made for X to live with the mother and spend four hours each weekend with the father under professional supervision. On 31 October 2018, orders were made for the mother to have sole occupation of the home and for Mr B to live with the mother. The mother moved back into the Suburb M home with X and Mr B. The father moved to a property owned by the paternal grandparents at Suburb N. On 31 July 2019, it was agreed that X’s time with the father be supervised by the father’s brother. In late 2019, Mr B, then aged 17 years, left the Suburb M home and went to live with the father at Suburb N. Final orders for property settlement were made in mid-2019. As a consequence of those orders, the father purchased the mother’s interest in the Suburb M property. The father put tenants in the Suburb M property and he and Mr B have remained living at Suburb N. In late 2020, the mother and X moved to a property at Suburb O which the mother had purchased. In January 2021, the parents agreed that X’s time with the father not be supervised but orders were made restraining him from using the internet while she was in his care. At the time of the hearing, the father and Mr B were living at the Suburb N property and X was spending time with the father on Sundays. Mr B also spends time with X at the mother’s home.THE ISSUES The mother’s case is that the father had been violent towards her and towards Mr B and that X does not want to spend overnight time with him. She contends that Mr B’s violent behaviour in the past, as a consequence of Mr B’s mental health difficulties, poses a risk to X’s safety and that violence in the home during the marriage has caused X to be anxious, have difficulty sleeping and experience night terrors. She contends that the father’s viewing of material the mother classifies as pornographic, and his life choices, pose a risk to X, both because she might be exposed to his behaviour and the amount of time he spends collecting material and categorising his collection. However, she concedes that the latter is a minor consideration. The father’s case is that there is no risk to X in his home, either from him or from Mr B and that any risk posed by X’s anxiety about staying overnight with him is outweighed by the benefit to her of extended time. He contends that the mother’s anxieties have negatively influenced X’s anxiety about spending overnight time with him.THE EVIDENCE OF MS P Ms P is a psychologist to whom X was referred in mid-2021. Both parents attended sessions with Ms P in mid-2021. Thereafter, X has attended upon Ms P approximately fortnightly.

Evidence

Evidence Before The Court

Ms P’s therapy has been addressed to X’s anxiety, including but not limited to, anxiety at separating from her mother. That therapy is ongoing.THE EVIDENCE OF DR L Dr L conducted interviews in July 2020. She recommended that the parents have joint parental responsibility for X and that X not spend overnight time with the father. In relation to X’s views, Dr L reported:[X] clearly expressed the following:•She wanted the amount of time she spent with her mother to remain the same•She enjoyed the time she spent with her father and wanted to be able to spend slightly more time with him•She liked having her time with her father supervised because she felt that he asked her too many questions and felt hassled by this•She did not want to spend time with her father overnight as she had significant fears that she would be exposed to the violence she had witnessed from him in the past•She had ongoing fears that her father, mother and/or brother would be involved in physical fights again in the future X told Dr L that, before her parents separated, they “were fighting every day” but that things were calmer after the separation but she worried that things would change and “the fighting would start again”. She said that she missed Mr B. X told Dr L that her father and Mr B “fight a lot together”. She said,I feel calmer, I don't have to listen to fighting anymore. I felt scared someone would get hurt. [Mr B] got hurt a lot of times. X said, “I don't get to see [Mr B] much anymore. I don't get to see Dad as much, but I wouldn't want to see Dad every day because worried he would fight”. Her biggest worry was that if her family were living together they would fight, as “dad still fights with [Mr B]”. Her hope for her family was, “that they won't fight ever again; that they stay safe.” Asked about her paternal grandparents, X said, “I like Grandma and Papa but they make me feel uncomfortable... they say things about mum”. Dr L did not ask her to elaborate on her answer. Dr L reported,When asked if she enjoyed the time she spent with her father, she stated that she did and named some of the many activities they did together, such as going to the park, engaging in physical activities and doing crafts together.When asked if she would like to spend some overnight time with her father, [X] stated that she did not, because she was scared that there would be fighting at her father's house. She was asked to elaborate further and reported that there had been frequent fights between her father and [Mr B] in the past and also fights between her father and her mother. She described fights during which “dad would push mum against the wall” and fights during which her father would “push [Mr B] down onto the floor and bang his head against the floorboards”. Dr L stated,While [X] did not meet criteria for the diagnosis of a disorder, she has clearly been psychologically affected by witnessing the verbal and physical conflict and violence which took place within the family home and is anxious and fearful about this recurring.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This is a matter where the primary considerations set out in s 60CC(2) of the Act are to the forefront. Those considerations are:Primary considerations(2) The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). X has already been exposed to violence perpetrated by both her father and her brother. I accept the unchallenged evidence of Dr L that X has suffered psychological harm from the verbal and physical conflict and violence that took place in the family home before the mother and X left and that X is anxious and fearful about violence reoccurring. In evidence in chief, for the first time, the father proposed that, if X were to stay overnight with him, he would ensure that Mr B was not present. It is to be remembered that the father proposes a week about arrangement so the effect of that proposal is that Mr B would leave home for every second week. The father conceded that he had not discussed that proposal with Mr B or with Mr B’s treating professionals and that such an arrangement might be both distressing for Mr B and harmful to him and that it might be harmful to X’s relationship with Mr B. The father said he would tell Mr B that the court required him to leave the home and that he, the father, was obliged to comply. When asked whether he would tell Mr B that this was his proposal, he said “I may not. I may – I may not. I don’t know. I would have to decide that later on”. The father and Mr B live in the Suburb N property which is owned by the paternal grandparents. Both gave evidence and neither was asked if he or she would exclude Mr B from living there. The father does not own or lease the Suburb N property and has no legal ability to exclude Mr B from it. I do not consider that the father’s proposal is either reasonable, considered or practicable. I accept the evidence of Mr B’s treating professionals that, at the present time, his mental health has improved, but none of his doctors suggests that his mental health might not again decline. There is no evidence before me that the father has taken steps to address his own violent behaviours. I do not accept his evidence in cross-examination that this aspect of his behaviour has been addressed in his therapy with Mr G. There is no mention of anger as a presenting issue in the referral by the father’s general practitioner to Mr G. Mr G has prepared two reports and in neither report does he mention the father’s anger and violent behaviour as an issue to be addressed. When asked in cross-examination about whether that was an aspect of the therapy, Mr G said there was no focus on anger management in the therapy. Before me, the father maintained his denial that he had been violent, either towards the mother or towards Mr B. Perusal of the material produced on subpoena from police and from Mr B’s treating practitioners reveals that he has not, in the past, accepted his actions as violent.