Heller & Fullagar

Case [2023] FedCFamC1F 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Heller & Fullagar [2023] FedCFamC1F 27

File number(s): MLC 7559 of 2019
Judgment of: HARTNETT J
Date of judgment: 7 February 2023
Catchwords:

FAMILY LAW – PARENTING - Rice v Asplund - Where the father seeks to vary final parenting orders – Where the father claims there has been a change of circumstances – Where the father claims the final orders are no longer in the children’s best interests – Where the father seeks sole parental responsibility – Where the father seeks a change to the children’s residence –Where the eldest child suffers from serious health and behavioural issues – Multiple intervention orders between the parties – Intervention order between the mother and the eldest child – Where the mother has brought criminal charges against the eldest child – Where Victoria Police has attended the mother’s residence in the presence of the children on multiple occasions – Where the father has breached previous court orders – Where the mother seeks summary dismissal – Where both parents have an acrimonious relationship – Where no significant change in circumstances since the making of final orders – Where the father’s application is dismissed – Where all outstanding applications are dismissed.

FAMILY LAW – COSTS – Where the mother sought costs on an indemnity basis – Where the father’s application was wholly unsuccessful – Where the father pay party and party costs of and incidental to the proceedings.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 12.17

Cases cited:

Baisman & Cartmill [2022] FedCFamC1A 36

Carriel & Lendrum (2015) FLC 93-640

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-603

Defrey & Radnor (No 2) [2021] FamCAFC 139

DL & W (2012) FLC 93-496

Goode & Goode (2006) FLC 93-286

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311

Rice v Asplund (1979) FLC 90-725

Sfankianakis & Sfankianakis [2019] FamCAFC 54

SPS v PLS (2008) FLC 93-363

Walden & Cooper [2020] FamCA 104

Walter & Walter [2016] FamCAFC 56

Zabaneh (1986) FLC 91-766
Division: Division 1 First Instance
Number of paragraphs: 149
Date of hearing: 15 September 2022
Place: Melbourne
Counsel for the Applicant: Mr Goddard
Solicitor for the Applicant: Higgins Legal
Counsel for the Respondent: Ms Mansfield
Solicitor for the Respondent: Cantwell Family Lawyers

ORDERS

MLC 7559 of 2019

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

MR FULLAGAR

Applicant
AND:

MS HELLER

Respondent

order made by:

HARTNETT J

DATE OF ORDER:

7 February 2023

THE COURT ORDERS THAT:

1.The applicant’s Amended Initiating Application filed on 30 August 2022 is dismissed.

2.Any and all other outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.

3.The applicant shall pay the respondent’s party and party costs of and incidental to the proceedings, as agreed in writing within 14 days hereof and failing such…

Continue reading Heller & Fullagar

Sign in free to access the full text

Details
AGLC
Heller & Fullagar [2023] FedCFamC1F 27
Case
[2023] FedCFamC1F 27
Decision Date

CaseChat Overview and Summary

In the case of Heller & Fullagar, the parties were involved in a long-standing dispute concerning parenting arrangements and the welfare of their children. The mother brought proceedings against the father for final parenting and property orders in July 2019. The matter was complex and involved allegations of family violence, the special needs of one child, and disagreements over the management of the children's electronic devices. The court had to decide on the best interests of the children and the management of their electronic devices.

The legal issues before the court included determining the best parenting arrangements for the children, resolving disputes over the management of the children's electronic devices, and addressing the father's claims of new evidence that allegedly demonstrated the mother's unfitness to care for the children. The court also had to consider the father's previous breach of a Final Family Violence Intervention Order (FVIO) and its implications for the parenting orders.

The court found that the issue of joint management of the children's electronic devices was impossible to resolve between the parents, as it was critical to the child's well-being but remained unresolved. The court noted that the mother had consistently ensured responsible use of digital technologies and had age-appropriate restrictions in place. The court also found that the father had not provided any specific details about the so-called "new evidence" he claimed to possess, which undermined his arguments for revisiting the parenting orders. Given the extensive litigation and the detailed findings from multiple reports and assessments, the court concluded that the children's best interests were served by the existing parenting orders.

The court made clear that the father's previous breach of the Final FVIO and his failure to provide specific details about any new evidence did not warrant a revisiting of the parenting orders. The court maintained the existing arrangements, which provided for the children to live with the mother and for her to have sole parental responsibility. The father was also required to comply with a lengthy Final FVIO against him due to his family violence.

The court's final orders reflected the comprehensive nature of the litigation and the detailed findings from various reports and assessments. The existing parenting arrangements were maintained, and the father was required to comply with the Final FVIO. The court did not find sufficient grounds to revisit the parenting orders based on the father's claims of new evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother relied upon:(1)a Further Amended Response to Initiating Application filed 5 September 2022;(2)her affidavit filed 5 September 2022; (3)the affidavit of Dr H filed 24 February 2022; and(4)her written submissions filed 9 September 2022.RELEVANT BACKGROUND The father is, and was at the final hearing, self-employed running his own business. The mother is, and was at the final hearing, employed part time in the allied health industry in addition to studying part time and being engaged in home duties. The parties commenced a de-facto relationship in early 2001, as claimed by the father, or late 2004/early 2005 as claimed by the mother, and separated on a final basis on 14 January 2019. The father remained with the children in the former matrimonial home until being served with an interim FVIO in January 2019 obtained ex parte by the mother. The mother has one adult child from a previous relationship, Mr W, born in 1999. The father’s evidence is that he has a strong relationship with Mr W, and has had such relationship since Mr W was 18 months of age. Mr W is estranged from the mother and has been for many years.[5] This is a fact not disputed by the mother.[5] Father’s affidavit filed 8 September 2022, paragraph 7. X is a special needs child and has been diagnosed with high function autism spectrum disorder, oppositional defiant disorder (“ODD”), attention deficit hyperactivity disorder (“ADHD”), nocturnal enuresis and a medical condition requiring daily medication. The children continue to attend J School in FF Town. There has been no change in respect of the parties’ residences, which continue to be in very close geographical proximity to each other. Proceedings were first commenced by the mother on 8 July 2019. On 11 September 2019, orders were made by consent, providing for X to live with the father and spend time and communicate with the mother pursuant to his wishes.[6] Following an adverse Magistrates Court family violence finding against the father, the children were placed in the mother’s primary care on an interim basis in January 2020.[7] Final parenting and property orders were subsequently made on 22 March 2022 before the conclusion of the trial, and by consent. I observe that there is no evidence presented by the father that suggests his inability to consent to an order, or his inability to understand the nature and consequences of the proceeding which was finalised in March 2022. Nor is there probative evidence of duress. Each of the parties were legally represented and there was an Independent Children’s Lawyer (“ICL”) in the proceeding (who supported the making of the final parenting orders). The parties had given evidence and been cross-examined. Before the Court in evidence were, relevantly, three Family Reports prepared by Dr H (“Dr H”),[8] and psychiatric assessments as performed by Dr B in respect of each of the parties.[6] Father’s affidavit filed 30 August 2022, paragraph 96.6[7] Father’s affidavit filed 30 August 2022, paragraph 96.7.[8] Affidavit of Dr H filed 24 February 2022.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The issue of joint management of X’s phone and smart watch, which would advance X’s best interests is simply impossible between the parents. The mother’s evidence is that X uses his phone to assist with reduced working memory (a symptom of ADHD), monitoring his medical condition, keeping in contact with his friends, self-soothing and emotional and sensory regulation. X not having his phone makes day to day functioning harder for him, creating extra stress as well as providing an incentive to return to the father’s home where the phone is kept by the father, rather than remain in the mother’s home.[131] It is the mother’s evidence that X is likely to experience the thought of not having his phone as a threat to his social and psychological well-being, impacting his sense of safety in the world. Such feelings have resulted in X acting in a manner that ensures he keeps his phone, including by avoiding changing homes. The mother states she has consistently ensured responsible use of digital technologies with age-appropriate restrictions and overarching parental control.[132] This is a matter that continues to be fraught and unresolved. It has always been so and is not a changed circumstance.[131] Mother’s affidavit filed 5 September 2022, paragraph 114.[132] Mother’s affidavit filed 5 September 2022, paragraph 179.CONCLUSION The father, in his affidavit filed 30 August 2022 claims “new evidence” exists that implies the mother has been negligent in her care of the children, has engaged in a course of deception, and is incapable of caring for the children’s needs.[133] However, I find, as submitted by the mother, that the father has pitched his case in exactly the same vein as set out in his trial affidavit filed 4 March 2022.[134] [133] Father’s affidavit filed 30 August 2022, paragraphs 27, 30.[134] Mother’s written submissions filed 9 September 2022, p.5. The father posits that there is “new evidence in the form of medical files that are incompatible with [the mother’s] assertions to the family report writer”.[135] The father fails to set out however, let alone with any precision, what the new evidence entails, making broad brush assertions only. The mother rejects the suggestion that anything contained in those records is enlightening or substantive such as to warrant a revisiting of the orders. In his affidavit in reply of 8 September 2022, the father notes the release to him, on 26 July 2022, of the CYMS material, but fails to isolate, as submitted by the mother and with which I agree, dates and events that are of significance and which exhibit a changed circumstance of such magnitude as to warrant a re-visiting of the litigation.[136][135] Father’s affidavit filed 30 August 2022, paragraph 13.[136] Mother’s written submissions filed 9 September 2022, p.5. The mother notes that this matter was exhaustively litigated over almost three years. Ultimately, with the benefit of Magistrates, Judges, an ICL, multiple reports and assessments made by psychologists and psychiatrists, it was either determined or agreed that the children’s best interests are served by living with the mother and for the mother to have sole parental responsibility for the children. Further, that the mother required the protection of a lengthy Final FVIO against the father due to his family violence.[137][137] Mother’s affidavit filed 18 August 2022, paragraph 106.

Ratio Decidendi

Legal Principle Established

There existed at trial in March 2022, a Final FVIO listing the father as the respondent and the mother as the affected family member. The Order was made in December 2020, in the County Court of Victoria, and is set to expire in September 2024. In 2021, the father appeared before the Magistrates’ Court of Victoria due to one breach of the Final FVIO. The father was found guilty and fined an aggregate of $5,000 with conviction. The father then appealed to the County Court of Victoria. The matter was settled by way of a Diversion Order. The father was required to provide a written apology, pay $3,000 in compensation and was given a good behaviour bond due to end November 2022.[9]CONSIDERATION[9] Mother’s affidavit filed 5 September 2022, paragraph 122.Some relevant episodes which have occurred since the making of final parenting orders On 27 March 2022, the father delivered the children to the mother’s home. Z and Y, had been in the father’s care since the making of the final orders some five days earlier. X had been in the father’s care since 23 January 2022. Z and Y immediately warned the mother that X was planning on ‘hurting’ her ‘badly’. X entered the mother’s home and approached the mother. X then hit the mother in the face, kicked her repeatedly, kicked his brothers, then left the home. The mother immediately called the father but received no response. The mother then messaged the father requesting his cooperation to enable the parties to work together to support X’s return to her care.[10] Y had told the mother that X had openly made threats and plans to hurt her, including in front of the father, leading up to the changeover. The mother alleged the father was aware of X’s violent intentions prior to changeover, but did not warn her or take preventative action to halt or alter X’s behaviour, placing the mother and the other children at risk.[11] The father called CYMHS in response to this episode.[12][10] Mother’s affidavit filed 5 September 2022, paragraph 17. [11] Mother’s affidavit filed 5 September 2022, paragraph 18.[12] Father’s written submissions filed 10 September 2022, p.5. On 29 March 2022, the mother messaged the father to see if X had gone to his home after school as he did not return to her care in accordance with the orders of 22 March 2022. The father did not respond. The maternal grandfather then went to the father’s home to see if X was there. X was there, with the paternal grandmother, in the absence of the father. The maternal grandfather sought to take X home, however was told by the maternal grandmother that she was not allowed to let X go.[13] The grandfather accordingly left the home without X.[13] Mother’s affidavit filed 5 September 2022, paragraph 20. On 29 March 2022, the father messaged the mother “noting the wording of court orders and in circumstances where [X] is not engaging with medical professionals and where I am concerned about him, I have been advised as a first step to take him to the [general practitioner] to allow for a preliminary discussion with a medical practitioner in a non-emergency setting”.[14] The father did not provide the mother with the details of the general practitioner, so the mother could be involved in discussions. The mother responded she was already organising appropriate referrals. At the time X was engaged with K Psychology and the mother had directed medical intervention.[15][14] Mother’s affidavit filed 5 September 2022, paragraph 30.[15] Mother’s affidavit filed 5 September 2022, paragraph 30.