HOLLANDS & HOLLANDS

[2020] FamCA 397

FAMILY COURT OF AUSTRALIA

HOLLANDS & HOLLANDS [2020] FamCA 397

FAMILY LAW – CHILDREN – Application filed by mother seeking parenting orders – With whom a child lives – With whom a child communicates – Allegations of violence – Orders that child live with the mother – Orders that mother have sole parental responsibility for the child including changing the child’s surname

Family Law 1975(Cth) s 60B and s 60CC

J v C in [1969] 1 ALL E.R. 824
Donnell & Dovey [2010] Fam CAFC 16
Yamada & Cain [2013] FamCAFC 64

APPLICANT: Ms Hollands

RESPONDENT: Mr Hollands

INDEPENDENT CHILDREN’S LAWYER: Kate Mooney SC

FILE NUMBER: HBC 702 of 2019

DATE DELIVERED: 30 March 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 30 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Murdoch Clarke

COUNSEL FOR THE RESPONDENT: Mr Blissenden

SOLICITOR FOR THE RESPONDENT: Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs Mooney SC

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Kate Mooney SC

Orders

1. Ms Hollands (‘the mother’) have sole parental responsibility for the child X … 2008 (‘the child’).

2. The child live with the mother.

3. The mother have sole parental responsibly to change the child’s surname.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

5. All outstanding parenting applications are dismissed.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hollands & Hollands has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:      HBC 702 of 2019

Ms Hollands

Applicant

And

Mr Hollands

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings in relation to the parenting application filed by Ms Hollands (‘the mother’) on 8 January 2020 and included an application for sole parental responsibility, residence and the power to change the child’s name in respect of X (‘the child’).  In support of that application, the mother relied upon three affidavits, primarily her affidavit filed 8 January 2020, but also her affidavits filed 20 January 2020, and 19 February 2020.  She also relied upon her application in a case and a form of orders which was provided by her counsel. 

2. When the matter first came before me in Chambers, I directed the appointment of an Independent Children’s Lawyer.  Mrs Mooney appears today representing the Independent Children’s Lawyer.  Mr Hollands (‘the father’) appears today and is represented by Mr Blissenden.  Mr Blissenden says of the orders that the father does not consent to them, but makes no submissions in opposition to them. 

3. Mrs Mooney for the child has seen the child and on the material that is available to her and available to me, most of which I have now read, including being taken to the relevant parts of a judgment in respect of an appeal by the father with regard to a conviction for violence, and says that she supports the final orders being made as asserted by the mother. 

BACKGROUND

1. The parties commenced a relationship and married in about 1997.  They separated in April 2019, and, relevantly, later in 2019, the mother was subjected to a terrible violent attack by the father in her home.  That also involved an attack upon the one of the parties’ elder children and took place, as I understand it, at a time when the child was at the home.

2. I have read and had regard to the matters contained in the mother’s affidavit, and particularly that of 8 January 2020. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

4. Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

5. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (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).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)      to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)      any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

6. The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]

   3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases.  The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240

   4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance.  For all I know that may have been true in some cases containing dicta to that effect.  But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change.  I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion.  But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.

   [1] Page 824.

7. These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.

8. The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.

9. The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-

   25.    In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:

   However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.  As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight. 

   We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.  For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75]. 

   (Bold emphasis added).

   26.    Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:

   It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …

   and more broadly, at [75]:

   While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …

10. The Full Court in Yamada & Cain (supra) went on to conclude:-

    27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.

11. I will endeavour to apply the principles of law to the facts.

12. I add further to that that the task with regard to making a parenting order is prospective and involves the Courts looking at the prospective risks to a child, looking at the relationship between the child and the father, and looking at the risk to the child in the particular circumstances.  I have had particular regard to paragraphs 24, 25, 26, 27 of the Court of Appeal decision.  I have also had regard to paragraphs 49, 50, 51, 52, 53, 60, 62, 63 and 64. 

13. There has been no challenge to the mother’s parenting of the child, and the evidence, including the conviction of the father and the circumstances and the nature of the comments on passing sentence made by the judge, causes me to have regard and concerns about the father’s interaction with this child and with the family into the future.  I have had regard to and accept the particular material contained in paragraphs 236 through to 275 of the mother’s affidavit filed 8 January 2020.  Of course, I have had regard to all of the material contained in that affidavit. 

14. I am satisfied that given the circumstances of this case, the only reasonably available order for me to make is first that the mother has sole parental responsibility.  Second that the child continue to reside with the mother.  Third, given the nature and the extent of the violence, that the mother have permission to change the child’s surname as sought by her. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 March 2020.

Associate:     

Date:              18 May 2020