Howells and Madden - [2015] FCCA 16

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELLS & MADDEN

[2015] FCCA 16

Catchwords:
FAMILY LAW – Parenting – application by the father to spend time with his daughter aged 14 – child has spent no time with the father since 2004 – mother opposed to time occurring – child opposed to time occurring – father a bombastic aggressive man with a false fixed view that the mother has mental health problems which are placing the child at risk and an obsessive desire to ensure that the child knows “the truth” about the mother and the past – no identifiable benefit to the child in an order that she spend time with the father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

A & A (1998) FLC 92-800
Howells & Madden [2005] FMCAfam 386
Hungerford & Tank [2007] FamCA 637
Mazorski & Albright [2007] 37 FamLR 518
Rice & Asplund [1979] FLC 90-725

Applicant:

MR HOWELLS

Respondent:

MS MADDEN

File Number:

NCC 3075 of 2012

Judgment of:

Judge Terry

Hearing dates:

15 and 16 July and 27 October 2014

Date of Last Submission:

27 October 2014

Delivered at:

Newcastle

Delivered on:

14 January 2015

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Bates

Solicitors for the Respondent:

Kinnear & Company

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

All previous orders are discharged.
The mother shall have sole parental responsibility for the child X born (omitted) 2000.
The child shall live with the mother.
The father may have telephone communication with the child on no more than one occasion each week and for that purpose he may telephone the child on the mother’s current landline or mobile telephone number.
The father may send letters and Christmas and/or birthday gifts to the child by posting them to the mother’s address.
The father may respond to any email communication received from the child.
The father may spend time with the child as agreed between the mother and the father noting that this is a permissive order which makes it clear that time can occur if the parties agree but does not place any obligation on the mother to respond to requests by the father to spend time with the child or to facilitate time between the father and the child.
The parties shall keep each other notified of their current address and current landline or mobile telephone numbers.

IT IS NOTED that publication of this judgment under the pseudonym Howells & Madden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3075 of 2012

MR HOWELLS

Applicant

And

MS MADDEN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern X, aged 14, and whether orders should be made for her to spend time with her father.
X has not spent any time with her father since she was recovered from him at Melbourne Airport in August 2004. On 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howells and Madden

Details

AGLC: Howells and Madden [2015] FCCA 16
Case: [2015] FCCA 16
Decision Date: 14 January 2015

CaseChat Overview and Summary

This matter came before Judge Terry concerning the parental responsibility and living arrangements for a child named X. The dispute centred on the father's contact with X, with the mother expressing significant fears regarding the father's past behaviour and its potential impact on both X and her own capacity as the primary caregiver.

The court was required to determine the best interests of the child X, specifically considering the likely effect of any change in X's circumstances, including separation from a parent. This involved assessing the potential impact on X of spending time with the father, and crucially, the impact on the mother of such arrangements. The court also had to consider the mother's genuinely held belief that the father posed a risk of abduction or withholding X, and whether this belief, even if not entirely rational, significantly affected her capacity as the resident parent.

Judge Terry reasoned that the mother's fears, stemming from a past incident where the father allegedly attempted to take X overseas, were not fanciful and had a profound and lasting effect on her. The mother's actions, such as moving towns, obtaining a silent phone number, and avoiding electoral rolls, demonstrated the depth of her anxiety. The court accepted that the father's secrecy regarding his address and date of birth augmented these fears. While acknowledging that an adolescent X might resist abduction, the court recognised that the mother's feelings of anxiety were understandable and impacted her well-being, evidenced by her need for anti-anxiety medication. The mother also perceived the father's behaviour as bullying, which she believed would be a negative experience for X.

The court ordered that the mother have sole parental responsibility for X, and that X live with the mother. The father was granted limited communication rights, including weekly telephone calls, the ability to send letters and gifts, and to respond to emails from X. Any time spent between the father and X was to be by agreement between the parents, with the order clarifying that this was permissive and did not oblige the mother to facilitate such time. Both parties were ordered to keep each other informed of their contact details.

Orders

Orders of the court

All previous orders are discharged.

The mother shall have sole parental responsibility for the child X born (omitted) 2000.

The child shall live with the mother.

The father may have telephone communication with the child on no more than one occasion each week and for that purpose he may telephone the child on the mother’s current landline or mobile telephone number.

The father may send letters and Christmas and/or birthday gifts to the child by posting them to the mother’s address.

The father may respond to any email communication received from the child.

The father may spend time with the child as agreed between the mother and the father noting that this is a permissive order which makes it clear that time can occur if the parties agree but does not place any obligation on the mother to respond to requests by the father to spend time with the child or to facilitate time between the father and the child.

The parties shall keep each other notified of their current address and current landline or mobile telephone numbers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I must consider the likely effect of any change in the child’s circumstances including the likely effect of any separation from a parent, any other child or other person with whom he or she has been living. This consideration has two ramifications in this case. First, I must consider the effect on X of making an order that she spend time with the father. I cannot make findings about this until I make findings about the remaining s.60CC(3) matters and I will return to this issue when considering the first of the primary considerations. Second, I must consider the effect on the mother of making an order that X spend time with the father. The mother remains fearful that the father may withhold or abduct X if he spends time with her. The father vehemently denied that he withheld/attempted to abduct X in the first place let alone that he would do so now but in A & A the Full Court held that it was necessary to consider not only whether there was an unacceptable risk of harm to a child in spending time with a parent but also whether the residence parent had a genuinely held belief that such a risk existed and whether that belief would have a significant impact on that parent’s capacity as resident parent and so impinge on the best interests of the children.[11][11] A & A (1998) FLC 92-800. The mother genuinely believes that if the father had succeeded in travelling to (country omitted) with X in 2004 the mother would never have seen her again and for reasons outlined earlier I cannot dismiss this as fanciful and without foundation. The incident has had a profound effect on the mother and over the years she has acted consistently with her fears. The mother said and I accept that she moved from (omitted) to (omitted) because she feared as a result of things the father said to X during telephone conversations that he was trying to find them and that she felt unsafe in the small country town and felt that she would be safer in (omitted) near family. The mother said that in (omitted) she arranged for a silent telephone number and made sure that she was never on the electoral roll. The fact that the father is secretive about his address and that he is known to give varying dates of birth have augmented the mother’s fear that if he disappeared with X he would be hard to find. The mother said and I accept that even though X was in high school she still drove her to school every day and waited until she went in the school gate and usually picked her up in the afternoon. Dr C considered this aspect of the matter and said as follows:As it is unclear to me how [the father] could abduct an unwilling adolescent X, I do not believe that [the mother’s] current fears about this possible event are rational. However feelings are often not rational and it is understandable that [the mother] has persistent anxiety about [the father’s actions].[12] [12] Dr C’s report page 16 The mother also considers that the father’s behaviour in trying to “bully, bluff and steamroll” people who do not agree with him means that X spending time with him would be a negative experience for her. She gave evidence that the idea of X spending time with the father stressed her and affected her mood and sleep and that she had commenced taking anti-anxiety medication in 2014 and I accept her evidence.