Holcroft & Tella
[2023] FedCFamC1F 676
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holcroft & Tella [2023] FedCFamC1F 676
File number(s): SYC 986 of 2019 Judgment of: CHRISTIE J Date of judgment: 14 August 2023 Catchwords: FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Sole parental responsibility –– Interstate relocation – Where the mother and father have been in an abusive relationship – Where harassment and abuse has continued after separation whilst attempting to co-parent – Where the father has had only sporadic and intermittent time with the child – Undefended hearing as against the father –– Where the relocating party seeks to relocate because of increased family support – Supervised time – Where professionally supervised time orders have not been taken up by father – Supervised time with grandparent as supervisor – Drug use by parent – Drug offence convictions by one parent – Inconsistency of time with child. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60C, 60CC, 61, 68B, 68LCases cited: Monticelli v McTiernan (1995) FLC 92-617 Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 14 August 2023 Place: Sydney Counsel for the Applicant: Mr Blank Solicitor for the Applicant: Culleton Lawyers Pty Ltd Solicitor for the Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Ms Deo (solicitor advocate) Solicitor for the Independent Children's Lawyer: Marsdens Law Group ORDERS
SYC 986 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HOLCROFT
Applicant
AND: MR TELLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for the long term decisions concerning the child X (“the child”) born 2016, including but not limited to:
(a)Education of the child both current and future;
(b)Religion of the child;
(c)Health of the child; and
(d)Changes to living arrangements.
2.The child live with the Mother.
3.The child spend time with the Father as agreed between the parties in writing.
4.Each party be permitted to have reasonable telephone contact with the child during those periods that the child is in the care of the other party by way of written agreement.
5.Each of the parents shall keep the other informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the child;
(b)Any medication that has been prescribed for the child;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)Any social, school or religious functions which the child is to attend;
(e)The telephone contact numbers and residential addresses of either party; and
(f)Any other matter relevant to the welfare of the child.
6.Unless otherwise agreed in writing, for the purposes of communicating information between the parties, the Mother and Father shall communicate by SMS text message and/or email.
7.The Mother is at liberty to change the child’s place of residence within the Commonwealth of Australia at any time.
8.The Mother and Father are at liberty to attend all school and extra-curricular events to which parents are ordinarily invited to attend PROVIDED THAT the child remain in the care of the parent then having the child in their care and the parents do not unreasonably approach each other during such events.
9.During the time that the child is with either parent, that parent shall:-
(a)Speak of the other parent respectfully;
(b)Speak to the child in a respectful manner; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
10.Pursuant to Section 68B of the Family Law Act 1975 (Cth) and on a without admission basis, each party shall be hereby restrained from:-
(a)Taking possession of the child other than in accordance with these Orders;
(b)Discussing these proceedings with the child or showing the child or any third party any document pertaining to these proceedings.
(c)Consuming alcohol to excess, using non-prescription medication and drugs of abuse; and medication other than as prescribed; whilst the child is in their care or twelve (12) hours prior to such time commencing.
(d)Discussing these proceedings in the presence or hearing range of the child.
(e)Showing the child any documents filed, correspondence or communication exchanged in relation to these proceedings.
(f)Showing or reading to the child, any parental communication including but not limited to text messages or emails.
11.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child X born 2016 is entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of the child’s Australian Passport, or any other document required to allow the child to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
12.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for the child upon application of the Mother alone in accordance with Order 11 above.
13.That for the purposes of section 65Y(1)(c)(ii) of the Family Law Act 1975, the Mother is permitted to take or send the child outside the Commonwealth of Australia without the need for the Father’s consent.
14.The Mother will retain child’s Passport at all times.
THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
These are proceedings for parenting orders. They are being conducted undefended as against the father. The father had previously been participating in the proceedings up to and including a mediation on 13 June 2023.
On 16 June 2023 the matter came before me for case management and was listed for final hearing today on the basis that it would proceed undefended as against the father if he failed to attend. The matter was called outside the Court today. There was no appearance by the father.
The proceedings concern X born 2016 (“the child” or “X”). X had an Independent Children’s Lawyer (“ICL”) appointed pursuant to s 68L of the Family Law Act1975 (Cth) (“the Act”).
THE LAW
The paramount consideration in any parenting application is the best interests of the child.
The mother seeks an order for sole parental responsibility.
The Act applies a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption will not apply if there are reasonable grounds to believe that a parent has engaged in family violence and will be rebutted by evidence which establishes that it is not in a child’s interests pursuant to s 61DA of the Act.
In order to determine what order or orders will be in the best interests of the child the Act sets out a specific but non-exhaustive list of primary and additional considerations.
The primary considerations are: s 60CC(2)(a) of the Act, which directs the Court to consider the benefit to the child of having a meaningful relationship with each of the child’s parents.
What is “meaningful” is measured by assessment of the evidence as to how the relationship will be experienced by the child. It is a measure of quality as opposed to quantity, although it is accepted that there may be a correlation between the amount of time and the significance of the relationship.
Section 60CC(2)(b) of the Act focuses on the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
Of the two primary considerations, the requirement to make orders which protect against harm or the risk of harm takes precedence. Otherwise the considerations will assume greater or lesser relevance having regard to the issues in the case.
The application before the Court also seeks injunctions. The making of an injunction in a parenting matter is in reliance on the provisions in s 68B of the Act.
CONSIDERATION
The mother and the ICL are largely agreed as to the form of orders which would be in the best interests of the child. Notwithstanding their agreement it is necessary to have regard to the evidence before the court to, independently of the parties, determine that the orders that are to be made are in the best interests of the child. To the extent that the Minutes of Order filed by the mother and ICL are not identical those Minutes of Order deal with the following topics:
(a)Whether or not the order for parental responsibility should be a sole parental responsibility order in favour of the mother or in the alternative whether or not the mother should be required, as a condition for her order for sole parental responsibility, to involve the father in decision making.
(b)The mother also seeks orders in respect of international travel including orders that she be able to give sole consent in relation to a passport. The ICL does not seek any orders in respect of travel.
(c)The final issue is that the ICL’s Minute of Order seeks costs.
The parties commenced cohabitation in 2012 and separated in November 2015.
The parties both have a history of illicit drug use and the father has a criminal record most, but not all of which, pre-dates his relationship with the mother.
The parties’ only child was born 2016 after the parties’ final separation.
The arrangements for X to spend time with the father after his birth were informal and in the period 2016 to mid-2017, took place in the presence of the mother.
A Single Expert Report prepared by Dr B was before me at this hearing. The report was dated 29 October 2020 and has not been updated.
Parental responsibility
The single expert expressed the view in her report: “…it is my concluded opinion that shared parental responsibility and shared care will not serve the interests of [X], a preschool child of high conflict parents.”
The mother seeks sole parental responsibility. I am satisfied that the presumption does not apply for the reasons discussed below.
An order for sole parental responsibility would entitle the mother to change the child’s place of residence, including moving to Queensland as she proposes in her affidavit.
It does not seem to be in dispute that the maternal grandmother has been a significant source of support to the mother, and that support enhances the mother’s parenting capacity. It is in X’s interests that the mother is supported in her parenting of him and to that end her proposal to relocate appears child focused.
It is unfortunate that the father has recently indicated to the mother that he cannot see himself visiting X in Queensland. Hopefully he will revisit that in due course.
The form of order proposed by the ICL would require the mother to notify the father about decisions, seek and consider his input. In making an order for sole parental responsibility I am satisfied that the evidence supports the conclusion that the mother will act in X’s best interests as regards long term decisions. It follows that I also accept she will consult with the father and/or inform him of matters if she believes it is in X’s interests. I am concerned not to create reasons for conflict in circumstances where the order for sole parental responsibility will in effect give the mother the right to make the ultimate decision.
The mother is seeking various orders which would require her to provide the father with information. I am satisfied that it is appropriate to leave the provision of information within her discretion. I will therefore make the order she seeks concerning parental responsibility.
Time
This case will not turn on X’s views, given his age and maturity.
Significantly, the orders which the mother seeks will provide that X live with her. This is a continuation of the arrangement he has experienced since birth and there is no indication in the expert evidence that the parent/child relationship is anything other than positive.
The father had the benefit of an order made 5 March 2020 which provided for supervised time each Wednesday between 8.00 am and 5.00 pm.
That time has only been exercised by the father sporadically.
This is significant since he told Dr B he would be able to manage X’s full-time care because he works his own hours.
The mother says that she tried to negotiate with the father but he rejected any time because he wanted his time with X to be overnight time.
In 2020 the father was arrested. He was charged and convicted. He was incarcerated between late 2020 and mid-2021.
Since the father’s release he has spent sporadic supervised time with X. In part this is because of the availability of the maternal grandmother to supervise although the father would have been entitled to regular time with X had he chosen to engage a professional supervisor.
When the single expert saw the parties, she was not aware of the father’s pending charges, and expressed the opinion:
…[X] has established, meaningful relationships with his father and paternal kin which should be maintained. Despite indications that the father’s lifestyle is not entirely prosocial and his social judgement is suboptimal, nothing has emerged to suggest an intolerable risk of harm exists in his home environment or that [X] would be neglected there – especially not while […] remain in residence.
The mother’s affidavit material does create an ongoing concern about time other than on a supervised basis. That evidence is not challenged before me. The court draws comfort from the history that the mother is committed to facilitating a relationship between X and the father, provided X is safe and she has had the assistance of her mother who also supports a safe relationship between the child and father. I was informed that time had occurred between the father and child as recently as yesterday. I note that such an arrangement is not provided for in the orders and accordingly could only have occurred because the mother considered it appropriate.
In the mother’s affidavit she sets out in some detail the time that X has spoken with the father and seen the father on a supervised basis in recent months. She also sets out a history of the father failing to attend when X had an expectation that his father would attend.
I do have to consider that the mother proposes to change X’s place of residence. In this regard I note that a relocation proposal is but a specific type of parenting order. The same considerations apply – namely I must be satisfied that the proposal is in the best interests of the child. The ICL did not express a view about the relocation aspect of the orders but tacitly, in supporting the mother’s application to in effect act as gatekeeper, there is some support for her proposal.
I must consider that it will almost inevitably decrease the ease with which X can see the father and in all likelihood diminish the frequency with which time will occur. Living in reasonable proximity has aided the informal arrangements of the parties and given X the opportunity for his father to, for example, see him playing sport.
However, as against that, to in effect require that the mother parent in proximity to the father’s home when he has been inconsistent in his capacity to exercise time, even when not incarcerated, would not be child focused. It is necessary to examine the evidence and the s 60CC considerations of the Act holistically. So, while I take into account the possible diminution in X’s time with the father, on balance the other advantages including assisting the mother’s parenting capacity, facilitating the child’s relationship with the extended maternal family and removing the mother from proximity to a conflictual relationship all weigh in favour of the relocation proposal.
The father does appear to be more consistent with telephone and electronic communication and the orders which are to be made provide for same.
Injunctions
The mother seeks injunctions for the personal protection of herself and X.
I am satisfied that the father has attended at childcare in the past and the centre were unable to prevent same without an order.
I have received evidence from the mother about family violence including her report of a serious physical assault by the father.
In her evidence the mother says the father has harassed her, including pursuing a relationship well after the mother had indicated their relationship had ended.
The text messages and interchanges between the mother and father have been, from time to time abusive in nature and included references to the mother as a “fucking dog” or “fucking snake”.
In mid-2021 an ADVO was made for her protection for a period of two years. The ADVO has now expired.
In Monticelli v McTiernan (1995) FLC 92-617, dealing with the former s 70C of the Act, which has since been replaced by s68B of the Act, Nicholson CJ and Fogarty J said at FLC 82,175:
The power to grant an injunction under subs (1) is the power to grant “such injunction as it considers appropriate for the welfare of the child…”, whereas in subs (2) the power is to grant the injunction in “any case in which it appears to the court to be just or convenient to do so”. Hence the suggestion that the principles to be applied in a case of this sort depend upon whether the proceedings are under subs (1) or (2). Where the proceedings relate to the welfare of a child we doubt the utility of such fine distinctions.
I consider, having regard to the uncontested evidence in the mother’s material that it is appropriate to grant the injunctions sought.
Passport/travel
The mother seeks orders relating to X’s passport and international travel. The ICL seeks no order.
An order for sole parental responsibility is precisely that – it gives one person (in this case the mother) the sole authority for long term decisions. That includes the issue of a passport pursuant to s11 of the Australian Passports Act 2005 (Cth).
For abundant caution, the mother seeks an order that she be permitted to be the sole parent on any application for a passport to issue and consent for travel outside Australia.
On balance I think it is best to make an order, the evidence establishes a series of missed opportunities for X to accompany his family to significant family events or holidays, for example in Country C and in Country D, on the basis that he did not have a passport or his father’s consent to travel.
COSTS
The ICL’s Minute of Order seeks costs. In light of the mother being in receipt of a grant of Legal Aid I decline to order costs.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 14 August 2023
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