Holcott & Holcott

Case [2023] FedCFamC1F 234

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Holcott & Holcott [2023] FedCFamC1F 234

File number(s): SYC 5847 of 2019
Judgment of: HARPER J
Date of judgment: 3 April 2023
Catchwords: FAMILY LAW – PARENTING – Where father has not spent time with children for three and a half years – Allegations of family violence – Where father concedes limited family violence – Where father demonstrates lack of insight into effect of behaviour on children – Where children consistently express fear of the father and decline to spend time with him – Where father does not believe children are afraid of him – Previous interim orders for supervised contact inoperable – Father argues that children have been coached by the mother – No evidence of coaching, however evidence suggests mother has expressed concerns to the children – Where father seeks staggered increase of time with the children – ICL and mother propose no time – Whether identity contact is appropriate – Where any form of contact would be distressing to the children – Where mother could not support any form of contract – Consent order for sole parental responsibility to the mother – Order for no time until the children turn 15, following which they may see the father according to their wishes.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CA, 60CC, 65D(1), 65DAB
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

M v S (2006) 37 Fam LR 32; [2006] FamCA 1408

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

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

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Division: Division 1 First Instance
Number of paragraphs: 160
Date of hearing: 14–16 November 2022, 23 March 2023
Place: Sydney
Counsel for the Applicant: Ms Ryan
Solicitor for the Applicant: Inner West Solicitors
Counsel for the Respondent: Mr Daniel
Solicitor for the Respondent: Barry F. Cosier and Associates
Counsel for the Independent Children's Lawyer: Mr Maddox
Solicitor for the Independent Children's Lawyer: John Spence & Associates

ORDERS

SYC 5847 of 2019

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

MR HOLCOTT

Applicant
AND:

MS HOLCOTT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

3 April 2023

THE COURT ORDERS THAT:

1.All previous parenting orders regarding the children, X, born 2011, and Y, born 2013 (“the children”) be discharged.

2.The mother have sole parental responsibility for the children.

3.The children live with the mother.

4.The father spend no time with, nor communicate with, the children, except in accordance with Orders 5 and 6 below.

5.Each child spend time with the father according to her or his wishes, upon each child attaining the age of 15 years.

6.The father be permitted to…

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AGLC
Holcott & Holcott [2023] FedCFamC1F 234
Case
[2023] FedCFamC1F 234
Decision Date

CaseChat Overview and Summary

In the matter of Holcott & Holcott, the Family Court was tasked with determining the parenting arrangements for the children, X and Y, of the relationship between the Applicant Father, Mr Holcott, and the Respondent Mother, Ms Holcott. The dispute centred on the level of contact the children should have with their father, with the mother advocating for no direct contact and the father seeking supervised visits and a potential resumption of a meaningful relationship with the children. The legal issues before the court encompassed whether the father should have any direct contact with the children, the potential risks associated with such contact, and the appropriate conditions for any contact, if permitted.

The court addressed these issues by carefully considering the statutory requirements under the Family Law Act 1975 (Cth), particularly the paramount consideration of the children’s best interests as outlined in s 60CA. The court examined the primary considerations of s 60CC(2), including the benefit of a meaningful relationship with both parents and the necessity to protect the children from harm. The court also took into account the additional considerations set forth in s 60CC(3). After reviewing the evidence presented by both parties, including expert family reports and testimonies, the court concluded that the children were at risk of harm if they were to have unsupervised contact with their father due to the substantiated allegations of family violence against him. Consequently, the court determined that the children should not have any direct contact with their father and that the mother’s concerns warranted a cautious approach to re-establishing their relationship.

The final orders of the court mandated that the children should not spend any time with their father, either directly or indirectly, and that any communication between the father and the children should be limited to cards, letters, or gifts. The court further recommended that the mother undergo a comprehensive psychiatric assessment and that both parents engage in individual therapeutic support. The court also stipulated that the father should not attend the mother’s home, work, or the children’s school or activities without explicit written permission. The costs of the Independent Children’s Lawyer were to be shared equally between the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These are final parenting proceedings between the Applicant Father, Mr Holcott (“the father”) and the Respondent Mother, Ms Holcott (“the mother”), in relation to the children of the relationship, X, born (aged 11), and Y, born 2013 (aged 10) (collectively: “the children”). BACKGROUND The parties commenced a relationship in 2010. They married in 2015 and separated on a final basis on 22 August 2019. The mother has two adult children from a previous marriage, Ms B, aged 25, and Mr C, aged 23. At the commencement of the relationship, the mother resided in a property she owned, located in Suburb D. At the time, Ms B and Mr C, together with two of the mother’s nieces, were residing with her. The father commenced residing with her in around late 2010, having previously resided with the paternal grandmother. The mother’s nieces returned to their own mother shortly after cohabitation commenced. The mother makes a number of allegations of family violence against the father before and after the birth of the children. These will be discussed as necessary in more detail below under s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), but reference will also be made to certain events in this section of the judgment by way of background. In mid-2011, the mother contacted the police following an argument with the father. An ADVO was obtained against the father to protect the mother, Mr C, and Ms B. The mother consented to the ADVO being dismissed in mid-2011. In mid-2012, the parties purchased a property in E Town. The mother sold her Suburb D property and contributed $200,000 to the purchase of the E Town property. In early 2014, the parties separated for a brief period, with the mother and the four children moving to reside with the maternal grandmother. The mother facilitated time between the children and the father. An incident ensued which resulted in the police being contacted. No charges were laid. The parties subsequently attended a counselling session but made no ongoing commitment. It is not clear when the mother and children returned to reside with the father. The mother ceased her employment with a government agency in mid-2017. The father reports that their relationship was beginning to deteriorate at the beginning of 2019, and that by February 2019, they were sleeping in separate beds. In mid-2019, the father contacted a relationship counsellor. The parties spoke to the counsellor separately. In June 2019, the mother contacted 1800 RESPECT for advice. She completed a DVSAT and a safety plan in anticipation of leaving the family home. The parties separated, with the mother leaving the former matrimonial home on 22 August 2019 with the children. The father remained in the former matrimonial home. He asserts that her departure was unilateral and her removal of the children was done without his consent. The children have not seen their father since August 2019. In mid-2019, an interim ADVO was issued for the mother’s protection. The father consented to the ADVO on a without admissions basis for a period of six months. He did not breach the ADVO within this time, there were no intervening events, and the ADVO was dismissed.

Evidence

Evidence Before The Court

Consequently, the issues for determination were narrowed to the question of whether the father should spend no time and not communicate with the children other than through cards, letters or gifts, or whether they should have identity contact with him and the paternal family, and the age at which the children should be permitted to spend time with him in accordance with their wishes.EXPERT EVIDENCE The first family report became tangential, owing to the inability of both the parties and the Court to secure the attendance of Ms H to give evidence. The second family report was based on the material filed by the parties so far in the proceedings, the Child Dispute Conference Memorandum, some documents produced on subpoena, and the interviews conducted as set out at the commencement of her report, as well as Ms H’s report. Ms L recorded the observations made by her as a result of conducting interviews with the parents, children, and the paternal grandmother. I will refer to the content of the report as necessary during the course of these reasons.Family Report Recommendations The family report writer made recommendations at [94]–[98] of her report as follows:94.If the Court determines that the children would be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Ms Holcott] has raised in respect of [Mr Holcott] have veracity:a) It is recommended that [X] and [Y] spend no time with [Mr Holcott].95.If the Court determines that the children would not be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Mr Holcott] has raised in respect of [Ms Holcott] have veracity, but that it would not be of benefit to the children to attempt re-introducing them to their father:a)It is recommended that [X] and [Y] spend no time with [Mr Holcott].96.Alternatively, if the Court determines that the children would not be at risk of harm if they were to spend time with their father, due to finding that the concerns that [Mr Holcott] has raised in respect of [Ms Holcott] have veracity, and that it would be of benefit to the children to attempt re-introducing them to their father:a)It is recommended that [X] and [Y] spend supervised time with [Mr Holcott] with professional supervision, four to six times per year. b)That paternal family be permitted to attend two/three of these visits per year.c)The family engage in Family Therapy to support the introduction of supervised time and processing the emotions that arise in relation to the children re-establishing their relationship with their father.d)It is recommended that [Ms Holcott] engaged [sic] in a comprehensive psychiatric assessment and follow any recommendations.e)When the children reach the age of 14, the children spend time with [Mr Holcott] as per their wishes. 97.It is recommended that [Mr Holcott] not attend [Ms Holcott]’s home, work or the children’s school, activities or appointments unless explicitly invited to do so in writing. 98.It is recommended that both parents engage in individual therapeutic support and it may be of assistance if any professionals undertaking assessments/therapeutic intervention with either parent or the family receive a copy of this report.

Decision

Reasons for decision

Both parents agreed to pay half the ICL’s costs.CONCLUSION For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

When making a parenting order, the best interests of a child are the paramount consideration (s 60CA of the Act), determined by an examination of the considerations as set out in s 60CC of the Act and weighed and applied within the ambit of the objects and principles set out in s 60B of the Act. Whilst the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary: Tibb v Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78]. I have considered each of the matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the parties and the ICL conducted the final hearing, and the ultimate proposals of each party.PRIMARY CONSIDERATIONS In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which 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. In applying these considerations, the Court is to give greater weight to the consideration in s 60CC(2)(b) (see s 60CC(2A) of the Act).Section 60CC(2)(a), benefit of a “meaningful relationship” The Full Court has endorsed the following propositions concerning s 60CC(2)(a). A “meaningful relationship” is one which is “important, significant and valuable to the child”, and a prospective approach to such a relationship is preferred: Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 at [118]–[119]; Sigley & Evor (2011) 44 Fam LR 439. The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407. It was clear the children benefitted from a meaningful relationship with their mother. The father contended the children would benefit from a meaningful relationship with him also, to the limited extent one could be maintained by identity contact. In his evidence, the father did not accept that the mother understood the need for the children to have a meaningful relationship with him. He maintained the position that the mother had exerted influence over the children and subjected them to a constant negative narrative about him. Almost to the end of the trial, he maintained that the mother, together with the maternal grandmother and the children’s half siblings, had been involved in the coaching of the children, to fear him and wish to spend no time with him. He claimed that the coaching extended to the children’s views expressed to a variety of third parties, including the children’s psychologist and Court Child Experts. The father’s position was that up to the date of separation, he had a loving and meaningful relationship with the children. He argued that despite the long period of time since he last saw them, they would be able to resume a warm and meaningful relationship with him, initially by supervised contact.