Hunt and Tucker
[2017] FCCA 251
•16 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNT & TUCKER | [2017] FCCA 251 |
| Catchwords: FAMILY LAW – Parenting orders sought – best interests of the child – equal shared parental responsibility – child live with the father – spend time with the mother. |
| Legislation: Family Law Act 1975, ss.61C, 61D, 69ZW |
| Applicant: | MR HUNT |
| Respondent: | MS TUCKER |
| File Number: | AYC 11 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 9 and 10 November 2016 |
| Delivered at: | Albury |
| Delivered on: | 16 February 2017 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person | |
| Counsel for the Independent Children's Lawyer: | Mr Wilson | |
| Solicitors for the Independent Children's Lawyer: | Friedlieb Byrne | |
THE COURT ORDERS THAT:
All previous parenting orders in respect of the children of the parties are discharged.
The child, X born (omitted) 2007 (‘the child X’) live with the father.
The child X spend time with the mother as follows:-
(a)during school terms each second weekend from after school at 3.00pm Friday to 6.00pm Sunday. The first of such weekends to occur on the first weekend of the school term;
(b)for one half of the first, second and third term school holiday periods from 10.00am on the first Saturday after the end of the school term to 12.00pm on the mid Sunday of the term school holiday;
(c)for three weeks during the Christmas school holiday period to commence at 10.00am on the first Saturday after the end of the final school term and concluding at 10.00am on the Saturday three weeks later in even numbered years commencing in 2018. In 2017 and each odd numbered year thereafter such three week period shall fall in the second half of the school holidays and to conclude at 6.00pm, 48 hours prior to the first school day of first term. It’s commencement is at 10.00am three weeks prior to that date;
(d)notwithstanding any other order to the contrary:-
(i)the child X shall spend time with the mother from 3.00pm on Christmas Day to 6.00pm on 26 December (Boxing Day) in 2017 and each alternate year thereafter; and
(ii)the child X live with the father from 3.00pm on Christmas Day to 6.00pm on 26 December (Boxing Day) in 2018 and each alternate year thereafter; and
(e)at such other times as agreed in writing between the parties.
For the purposes of all time spent with the mother shall collect the child X from school on if there is no school for the father’s residence and return the child X at conclusion to the father’s residence.
The appointment of the Independent Children’s Lawyer continue for a period of twelve months from this date, and then be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Hunt & Tucker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
AYC 11 of 2014
| MR HUNT |
Applicant
And
| MS TUCKER |
Respondent
REASONS FOR JUDGMENT
By amended initiating application filed 19 March 2014 the Applicant father sought both children and property orders. By response filed 17 April 2014 the mother sought differing children and property orders. I shall not set out in these reasons those orders as sought at that time. At the time of trial in November 2016 the orders sought by the parties differed somewhat from those earlier sought, by reason of intervening circumstances and interim orders made. The parties at trial were litigants in person. An Independent Children’s Lawyer was appointed pursuant to Court orders made on 25 February 2014. Counsel represented the Independent Children’s Lawyer at trial.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
History
The father was born on (omitted) 1972. He is now aged 44 years. He resides in rental accommodation in (omitted) and is a (omitted) by occupation. He is currently partially employed and otherwise in receipt of Centrelink benefits. The father has resided in a de facto relationship with Ms F since approximately April 2013, a period approaching four years. Ms F was born on (omitted) 1974. She is now aged 42 years. She is employed part-time in (omitted) working day shifts. Ms F has three adult children, one of them who is currently living in the household of the father and Ms F. Ms F has a mutually close and loving relationship with the child X, and has been supportive of the parties other children whilst they were living in the household. I accept her evidence that she did a lot for the children during that time and that together they mostly ‘had a good time’.
The mother was born on (omitted) 1975. She is now aged 41 years. She resides in rental accommodation in (omitted) and is in receipt of Centrelink benefits. She claims to work as a (occupation omitted). However she has ongoing difficulty in securing accommodation without assistance, and appears to be in financial difficulty.
The parties have five children. Those children are:-
a)Y born (omitted) 1993. Y in now an adult. He is 23 years of age. He is in a relationship himself and has two very young children who are aged three years and one year. His partner Ms H or (omitted) (both surnames are used by her) is expecting their third child. He gave evidence on behalf of his father in the proceedings;
b)Z born (omitted) 1995. Z is now an adult. She is 21 years of age. She resides with the mother and moved to so reside in December 2012 aged 16 years. This was some 10 months after the parties’ separation;
c)W born (omitted) 2000. She is aged 16 years and will turn 17 (omitted). She currently resides with the father as deposed to by him in an affidavit sworn in January 2017. She lived with her father from separation until February 2016, when her mother or her mother’s agent collected her from school as requested by the child. W remained in her mother’s care until 20 November 2016 when she elected to return to her father’s care. This appears a fluid situation;
d)V born (omitted) 2002. She is aged 14 years. She resides with the mother having elected to move to her mother’s residence in May 2016. The position at trial was that she saw little of her father; and
e)X born (omitted) 2007. He is aged 9 years and (omitted) months and resides with the father and Ms F. He attends (omitted) Primary School and is in Year 4. He has resided in the primary case of his father for approximately five years.
Cohabitation between the parties commenced somewhere in 1992. The parties did not marry. They separated on 18 February 2010 as asserted by the father. The mother claims that separation occurred in February 2012. On the totality of the evidence before the Court it is more likely the parties separated finally in early 2012. Prior to that time however, and for approximately two years, the parties spent considerable time apart as the mother left the family home during the week (and for three or four nights) to be employed in (omitted) at her mother’s newsagency. The mother lived both with the maternal grandmother and in a second property located on the maternal grandmother’s real property. In her absence during those times, and ultimately following the separation, the mother left the parties’ children in the care of the father. The parties cohabitated for a long period, in the vicinity of 20 years. The parties’ youngest child X was approximately four years of age at separation. The father ceased his part-time employment at the (omitted) upon separation and became a full time stay at home parent. The mother commenced visiting the children at the former matrimonial home at (omitted) on an irregular basis. The father vacated the home to enable the mother to stay overnight on occasion. The mother also took the children on outings away from the home. During one such outing, the child X sustained a fractured arm. The father thereafter indicated to the mother that he had real concerns about her capacity to keep the children safe. At that time he had observed the mother to be frequently intoxicated and affected by drugs, in particular, he claimed heroin which I accept the mother did not take, and ice, which she did. As a consequence the father proposed the mother’s future time with the children be supervised by him. The mother in response commenced, in 2013, to attend at the children’s school in order to see them. The father objected via correspondence from lawyers engaged by him and the mother desisted.
Proceedings
The father commenced proceedings in the Court on 13 January 2014 to regularise arrangements between the parties for the care of the children. In interim proceedings in the Court on 3 April 2014 Judge Harman made the following orders:-
“1. That within fourteen days of the date of these orders the father sign all such documents and do all such acts necessary to complete and submit Births Registration Applications to Births Deaths Marriage Victoria, for the children W born (omitted) 2000, V born (omitted) 2002 and X born (omitted) 2007.
2. That the parties do all such acts and sign all such documents necessary to enrol at the (omitted) Children’s Contact Service within seven (7) days of the date of these Orders.
3. That the children W, V and X spend time with the mother at the (omitted) Children’s Contact Service as facilitated by that service.
4. That the mother have telephone contact with the children W, V and X each Sunday between 4:00pm and 5:00pm by telephoning the father’s mobile telephone number.
5. That the property settlement proceedings be listed for a conciliation conference.
6. The children W, V and X live with the father.”
Prior to the trial in November 2016 all outstanding property matters had been resolved by the parties entering into consent orders. The mother as a consequence was to have been the sole registered proprietor of the real property situate at Property A, in the State of Victoria (‘the real property’). This real property was the former matrimonial home. The mother was solely responsible for the mortgage registered over the real property in favour of the (omitted) Bank. The real property had been, prior to the parties purchase of it in June 2001 for the sum of $44,000, in the proprietorship of members of the mother’s family. The mother was to pay the father $5,000 for his interest in the real property. The payment has never been made. The (omitted) Bank took possession of the real property in late 2015 as the mother had not made the necessary mortgage repayments and the account was in arears.
In respect of the competing parenting orders sought at trial, the residence of only the child X was in dispute between the parties. Thus any application in respect of the other children (under the age of 18 years) of the parties was deemed abandoned and no interim orders thereto shall remain in existence. Both parties sought that X live with them and spend time with the other parent. The Independent Children’s Lawyer sought orders at the conclusion of the trial that X live with his father and spend time with his mother being three weekends in each four and one half of the school holidays. The father sought a sole parental responsibility order in respect of X and the Independent Children’s Lawyer sought no parental responsibility order be made.
On 19 August 2016 the Court made the following orders:-
“(1) All extant applications be adjourned to the Albury circuit sittings of the Federal Circuit Court for final hearing on 9 November 2016 at 10am with priority.
(2) The mother file and serve an affidavit of evidence in chief within 45 days hereof.
(3) The mother file and serve an affidavit sworn by Mr G within 45 days hereof.
(4) The father file and serve any affidavit material on which he seeks to rely at least 14 days before trial.
(5) The Independent Children’s Lawyer subpoena the Victoria Police and New South Wales Police records of Mr G and there is liberty to the parties to inspect same.
(6) Notwithstanding any other orders to the contrary and until further order:-
(a) the child X born (omitted) 2007 (‘X’) live with the father;
(b) the child V born (omitted) 2002 (‘V’) live with the mother;
(c) the child X is to spend with his mother from Saturday 10am until Sunday 12 noon in each week hereafter. Changeover to occur inside the (omitted) Police Station; and
(d) the child V to spend time with the father each Sunday from 12noon to 6pm with changeover to occur within the (omitted) Police Station.”
On 19 August 2016 and prior to the making of the above orders, the Court gave the mother leave to adduce oral evidence as a consequence of her having filed no updated affidavit evidence in accordance with earlier orders of the Court. The Court then made orders to afford procedural fairness to the father and Independent Children’s Lawyer, providing for the mother to file an affidavit of evidence in chief prior to trial. The Court also required the mother to file affidavit evidence of her then, de facto partner, Mr G. The Court indicated to the mother that as Mr G was a person in the household of the mother, and indeed interviewed with the mother by the family consultant (on 19 February 2015), it was necessary for the Court to have some evidence from him and to have Mr G available for cross-examination. The mother failed to file and serve an affidavit of evidence in chief and an affidavit sworn by Mr G. She claimed at trial that Mr G no longer lived with her although they were still clearly in a relationship which has existed since mid-2014. The mother relied on her affidavit of evidence sworn 14 April 2014 and otherwise put no relevant evidence before the Court. The mother was cross examined by the father and the Independent Children’s Lawyer.
The father relied upon his affidavits of evidence sworn 13 March 2014; 4 July 2016 and 26 October 2016. The father also relied upon evidence given by Ms F, his de facto partner; upon evidence given by the parties’ son, Y; and upon evidence given by the paternal grandfather, Mr H. Each of those witnesses and the father were cross-examined by the mother and the Independent Children’s Lawyer. The father tendered in evidence as exhibits the NSW police criminal history of Mr G as well as his own. That evidence gave Mr G’s date of birth as (omitted) 1989. He is thus aged 27 years. The father’s offending related to drink driving, which last occurred in 2003; stealing for which he received a fine and which last occurred in 1996; and using offensive language which last occurred in October 2004.
Mr G was charged in May 2016 and convicted in July 2016 in the (omitted) Court with:-
Offence
1. Dishonestly Obtain Property by Deception
2. Unlawfully Possess Number Plates
3. Custody of Knife in Public Place- First Offence.
Sentence
Fine: $400; Compensation: $62.60.
Fine: $600
Fine: $500. Weapon/ Implement forfeited to the Crown.
The Independent Children’s Lawyer relied upon the family report of family consultant Ms D, dated 2 April 2015. Ms D was not cross-examined by the parties. The Independent Children’s Lawyer relied upon a case outline dated 8 November 2016.
Additionally, the Independent Children’s Lawyer tendered in evidence police records with respect to the mother who has an outstanding warrant for her arrest in relation to a fraudulent incident which occurred on 11 May 2016 at (omitted). This premises employed the mother for eight to nine months in 2014. The mother stayed three nights as a guest in 2016 and failed to pay the $300 owed by her in respect of that stay. Whilst the mother gave evidence that she had paid this debt owing, I find she has not. Her evidence concerning it had no credibility. Otherwise the mother has traffic infringements issued in respect of using an unregistered and uninsured car in both April and August of 2015.
Other evidence tendered in the proceedings by the Independent Children’s Lawyer was information received from the Department of Health and Human Services (‘the Department’) in response to an order made pursuant to section 69ZW of the Family Law Act 1975 (Cth). The Department had involvement with the family relevantly to these proceedings in July to September 2012; October and November 2012; March to May 2013; September and October 2013; March 2014; June 2014 and March 2015. Confidential Court Reports prepared by the Department for the (omitted) Children’s Court in respect of 2012 and 2013 reporting to and involvement of the Department with the family, were also in evidence before the Court. At that time the Department had obtained an interim accommodation order with respect to the parties’ daughter Z who was then 16 years of age. That interim accommodation order placed Z in the home of one of her maternal aunts. Z had absconded from the care of her father and refused to return to his care, or that of any members of the paternal family. Z wished to reside with her mother however her mother was using drugs. The mother conceded in these proceedings that she consumed ‘ice’ between February and August 2012, and was incapable of caring for her children prior to the end of 2012. The mother was also incarcerated for two periods of approximately three weeks each in 2011 and 2013 for the non-payment of fines. Z disclosed to the Department that her father physically and verbally abused her. The father denied that he physically abused Z, but said in these proceedings that he probably verbally abused her, as they had many arguments in the course of his parenting of her. Z also claimed that she was made to do all the household chores and care for her younger siblings. She was not allowed (by her father) to see her mother, and wished to. The Department withdrew their protective application in respect of Z in December 2012. The mother had engaged in a drug and alcohol program and had obtained rental accommodation. She was about to commence sessions with a psychologist. The father had been referred to and accepted into the ‘Child First’ program to assist him in his care of Z’s three younger siblings. Y was already residing out of the home.
Other Evidence
The mother claimed she had been subjected to significant family violence perpetrated upon her by the father. It was a claim denied by the father, save that he admitted that both parties would yell at each other and be abusive to the other during the course of their many arguments. There is little reliable corroborating evidence as to the mother’s various and concerning claims of extreme violence perpetrated upon her by the father, which included punching her to the head, face and body; dragging her by the hair; kicking her in the legs; and smashing her face into cement causing a number of her teeth to break. The mother claimed these assaults were witnessed by all of the children. She claimed further that the father assaulted the children and in particular the child Y, including hitting him with an electric jug cord. She claimed further that the father tried to run her down in his motor vehicle in (omitted) in May 2013. The father said as to this claim by the mother that she had run out on the road in front of his vehicle, yelling and screaming at him, and that he was forced to swerve his motor vehicle to avoid hitting her. The mother did seek an IVO in respect of this incident and the father gave an undertaking without admission to not commit family violence. Otherwise the mother did not attend upon a doctor, a dentist and/or a hospital for treatment in relation to her various claimed injuries and assaults.
The only police evidence available to the Court is that there was one domestic violence call to police in 2003 by one of the children when the father, who was exceedingly drunk, recording a blood alcohol reading of 0.197, had driven away from the home after yet another heated argument between the parties. The chaotic scene described by the mother in her evidence, including extensive property damage she claimed to be occasioned by the father “demolishing the house” over a 30-40 minute period, was not observed nor noted by, the attending police officer, a Senior Constable whom the parties agreed was a very experienced policeman. The father denied the mother’s claims as to property damage and assault. The mother’s evidence was that the Senior Constable “could clearly see the house was upside down and that I was bleeding from head to toe”, which she clarified to be bleeding from the head, nose, knees and feet as a consequence of injuries inflicted upon her by the father. The mother’s further evidence was that the children were distraught. Neither party was charged with an offence arising out of the argument between them, nor was an Apprehended Violence Order issued for either party. The police records, produced in evidence do not support the mother’s account and record as to that episode the following:-
“Domestic argument between de factos. Other party’s brother was stabbed to death earlier this year and is going through a grieving period, AFM is not grieving, O/P has been drinking and a verbal argument has erupted. AFM threw ashtray at O/P. He ducked an ashtray hit wall and smashed. AFM walked on broken glass cutting sole of her left foot. O/P has fled the scene prior to police arrival. O/P was intercepted by police and arrested and conveyed to police station for breath test positive. No assault to AFM. Nil injuries, nil damage. Children checked and fine, alcohol definite. Verbal argument only.”
The mother also claimed the father had guns in the house which made her fear for her safety. The father had, and still has, guns in his household. He has one shotgun and a number of rifles. He holds a licence in respect of his gun collection, which he described as a shotgun for rabbits and otherwise military weapons, collected by him from World War II. His evidence, which I accept, is that his gun collection is kept in a gun safe in accordance with relevant State legislation. The matter of family violence is further considered hereafter in these reasons.
Both parties have a history of cannabis and some amphetamine use. The mother’s drug use escalated both before and after separation, to include the use of the methamphetamine drug ‘ice’. At trial the mother claimed to no longer use drugs. The Court cannot be satisfied on the evidence that is case. The father claimed to have ceased all drug usage in March 2013 save that he has now relapsed and uses marijuana occasionally when he is feeling stressed.
The evidence established that the father attended the (omitted) Hospital on a number of occasions at the direction of the Independent Children’s Lawyer for the purposes of supervised chain of custody urinalysis testing. His drug screen test results were clean for the drugs tested until recently when he tested positive for cannabis. He attended on only six out of eleven occasions requested. The mother was also requested to attend for drug testing. The father claimed in evidence the mother was using drugs, including the drug ‘ice’ throughout 2015 and 2016, and that her use of such drugs presented a risk to the children. The mother provided only limited (three) urine drug screen test results despite the eleven requests made of her by the Independent Children’s Lawyer. The test result of 5 May 2016 was clean for the drugs tested. However, the test result also indicated that no photo identification was sighted by the provider of the test. The sample collected on 19 May 2016 was clean. The sample collected on 30 March 2014 was positive for cannabinoids. The mother also failed to undergo testing in the relevant timeframe requested by the Independent Children’s Lawyer, undertaking the tests some days later. The Court infers on the drug testing evidence before it that the mother still uses drugs of indeterminate type.
The father produced in evidence a series of text messages which he claimed were derived from the mother’s mobile phone. These messages indicated both drug usage and purchase and sale by the owner of the mobile phone. The mother denied the phone belonged to her and gave evidence that she has “never written texts like that or received them”. There was insufficient evidence for the Court to find to the necessary standard of proof that the phone in question belonged to the mother.
The parties’ relationship is volatile and extremely hostile. They have no effective means of communication. The mother claims a long history of family violence. The father denies the mother’s allegations. The children have told the Department that there has been family violence in their home between their parents and physical violence directed to them and/or their mother by their father. Some of the children have also made claims to the Department that were false. The children have also been caught up in the long standing conflict between the maternal and paternal families. One of the mother’s sisters was in a relationship with the father’s brother and they had a child. The relationship ended. The maternal aunt’s new partner murdered the father’s brother. That very tragic event occurred approximately 13 years ago.
The mother’s further evidence was that the father had been violent to X. She claimed he had hit X in the face in 2015 causing a black eye and that much earlier, when X was about two years old, the father had thrown X onto the ground and kicked him. This, the mother claimed, occurred whilst she was still in the home. The mother nevertheless left the children in the care of the father upon separation. The father denied the mother’s allegations. The Department investigated and found no protective concerns. Ms F, who was an impressive and truthful witness, gave evidence that there is no violence in their household and that the father has not physically assaulted X in the years that she has resided in the household. The Court concludes on the totality of the evidence that the events described by the mother with respect to X cannot have occurred.
The mother significantly embellished her claims in the giving of her evidence. Some examples are as follows:-
a)the mother claimed that the father threatened her after separation. She made no such claim at a point closer in time, being her affidavit sworn in 2014 prepared with the assistance of her Solicitor. I accept the father’s denial of this new allegation;
b)the mother claimed that during one ‘beating’, the father broke her four front teeth and a further side tooth. Her evidence was that parts of her broken teeth were removed and approximately one month later, she had further dental treatment with the affected teeth being completely removed with a full plate of false teeth replacing them.
This ‘beating’, denied by the father, the mother claimed continued for ‘around 45 minutes’. The children were screaming and the father at one point had his foot on the mother’s head and was pushing her head into a concrete path. The episode described by the mother would have left her severely beaten and injured, and in need of medical care. No medical care was sought by her. The mother’s evidence, that she underwent extensive dental treatment as a consequence of this assault could have readily been corroborated by her treating dentist. The mother was on notice that the father challenged her evidence and categorically denied any such assault took place. In the circumstances of this case where there are significant allegations of violence, which are denied, the Court would have been assisted by evidence from the mother’s dentist. It is difficult to avoid the conclusion that such evidence was not put before the Court by the mother because such evidence would not have supported that which she claimed.
c)the mother gave evidence that the father subjected her to a ‘beating’ of one and a half days duration not long after the child Y was born. Her evidence was further that the paternal grandfather who lived nearby attended upon the property when he heard the mother screaming and told his son to “pull up for a bit”. The father denied this incident ever occurred. The paternal grandfather gave evidence this did not occur. Under cross-examination the mother was asked about the duration of the beating by Counsel for the Independent Children’s Lawyer and the mother reiterated that the ‘beating’ had continued over a day and a half. No medical attention was sought by her. Her account of this episode was not plausible and cannot be accepted.
The mother claimed that the father punched Y when he was about 10 years of age, causing Y to sustain a black eye and to become unconscious. The mother did not take the child to hospital or seek out any medical treatment for the child despite his being rendered unconscious. Y was at the time attending a small primary school with a total enrolment of nine children. The mother’s evidence was that the Principal of the school did not notice Y’s black eye. The mother, then inconsistently claimed that all the teachers (including the Principal) did see Y’s black eye but that they did nothing. They made no reporting of the incident to the Department and did not seek out the parents to talk to them. Again, this account is implausible.
The mother claimed that X will suffer physical and emotional abuse if residing with his father. The evidence before the Court from the school the child attends; Ms F; and X himself does not support that proposition. X told Ms D in interview that he “feels safe” when with his father. He also said he wished to spend more time with his mother than the limited time he was spending. Ms D was of the view that his expression of such wish should be given some weight by the Court.
The mother is wanted for questioning in respect of an alleged theft and assault which occurred in the (omitted) shopping centre around the time of trial. The mother’s evidence was that she offered to speak to the police as she was a bystander to the offence. The father’s evidence is the CCTV footage shows the mother to be the perpetrator. The Court can make no finding in respect of this episode.
Y
Upon leaving home, the child Y commenced to use ‘ice’ for a period of time, being approximately four months. This caused a falling out with his father. He lost his accommodation and job and spent time with his mother which included a period of homelessness. His father’s evidence is that his mother supplied him with drugs. That is denied by the mother. In about mid 2013 Y relocated back to his father’s home which was then a rental property in (omitted). Y’s de facto partner had given birth to their first child and Y needed his father’s support for his family at the time. Y was undergoing regular drug screens as ordered by the local Magistrates’ Court in respect to a criminal charge arising out of his use of ‘ice’. Y and his father had a further falling out between Christmas 2014 and February 2015. It was during this time that Y attended upon Ms D for the preparation of a family report. After five months, Y again contacted his father and they resumed their amicable relationship. Y’s evidence to the Court was that his father is a good father and grandfather who provides he and his de facto with considerable support in the care of their children. His evidence was that his father has not been physically violent to X, his mother or himself.
Y was interviewed by the family consultant on 19 February 2015. He had already become a father himself, his first child being born in (omitted) 2013. At the time of interview he was 21 years of age. At trial he was 22 years of age. He resides with his de facto and their two children in (omitted). Y gave sworn evidence in the proceedings to establish that firstly, the allegations said to be made by him to Ms D were in fact made by him, and are accurately reported; and secondly to withdraw those allegations and give sworn evidence that what he told Ms D was in essence a complete fabrication.
Y’s allegations are set out in paragraphs 45-47 inclusive of Ms D’s report. They are set out below:-
“45. Y (aged 21 years) whilst not subject to these proceedings, was interviewed in order to gain an understanding about his perspectives of the family situation. Y alleges that he witnessed Mr Hunt perpetrate serious family violence towards Ms Tucker and he was the victim of physical assaults and mistreatment from Mr Hunt. Y said that, as a consequence, he suffers with symptoms of post traumatic stress disorder, depression and anxiety. He said that he is scheduled to attend personal counselling. Y said that he has now completely “cut ties” with Mr Hunt. He said that he cannot forgive his father, “for what he’s done”.
46. Y said that he witnessed Mr Hunt commit severe physical violence on his mother. For instance, he said that he saw Mr Hunt “slam” Ms Tucker’s head into a door and he “knocked her teeth out”. Y said that when he was young he was frightened about returning home from school each day because he did not know what to expect when he got there. He said that he had thought that their home life, including witnessing family violence and “being thrown around” and “hit”, was “normal”. He said that, from when he was young age to his mid-adolescence, Mr Hunt “beat” him and caused him to have black eyes and bruising to his body. He said that he wanted to go to the police but was worried that he would suffer reprisals if Mr Hunt became aware of this.
47. Y said that, after he left Mr Hunt’s house, he subsequently reconciled with his father because Mr Hunt had told him that he had changed for the better and he (Y) believed him. Y said that he does not now believe that Mr Hunt has changed and he alleges that Mr Hunt physically hit X and is responsible for X having a black eye. He said that the children would be too frightened to speak up about any mistreatment. He said that Mr Hunt always told him to “lie” if asked about his home life. Y is very clear that he does not want his younger siblings to continue to live with Mr Hunt because he feels they are unsafe.”
Y’s explanation for his false and very serious allegations about his father to Ms D was that he had been informed by his mother and sister Z, on the day he spoke to Ms D, that his father had made a protective notification to the Department concerning his and his de facto’s care of their children. That information “got me real angry” he said. He claimed to have “a short temper and yes, I took it a bit too far.”
The question for the Court is what to do with these two very different accounts provided by Y. One was to Ms D in interview and the other on his sworn evidence in the courtroom. His mother’s cross-examination of him did not alter the evidence he gave but she barely persisted. Her view is that he wants his father’s approval and is intimidated by him. Y’s account to Ms D had some consistency with the version of events given by his sisters to Ms D and to the Department. Some of what the children have disclosed to the Department is a fabrication, but not all. It would seem there has been family violence during the relationship perpetrated by both parents emotionally and verbally and on occasion by the father physically but not to the extent claimed by the mother and nor by Y to Ms D. In February 2016, W falsely reported that her father had recently kicked and punched her. The Department have no current protective concerns in respect of any of the children which included X who has throughout remained with his father.
Conclusion
How are X’s best interests served? This is the paramount consideration for the Court. His father offers stable accommodation and a history of primary care. They have a loving relationship as does X with Ms F. X has been separated from his siblings for some time now although there still appears to be some potential for movement of the children between the houses of their parents. X’s mother and X have a loving relationship and X wants regular time spent with his mother. His interests are promoted by both parties complying with Court orders, in particular the mother who has failed to do so in the recent past. X feels safe with his father and his father is engaged in his various activities in a positive way. There is no unacceptable risk for X in continuing his current living arrangements. His father has shown a commitment to the responsibilities of parenthood to a greater extent than his mother. X should continue to live with his father and spend time with his mother. The Independent Children’s Lawyer proposed that include three weekends in four. The father sought some weekend time with X to visit paternal family members and to engage with him in weekend activities. Such activities included encouragement of sporting commitments for X and interaction with local friends. X is of an age where he needs some reasonable weekend time with his father and in his home environment. Alternating weekends between his parents will balance for him the competing needs of spending time with each parent and pursuing his own peer group activities.
On 16 January 2017 the Court made orders pending the making of final orders and delivery of judgment. Those orders were necessitated by the mother’s failure to comply with orders of the Court made 19 August 2016. Her actions were not in the best interests of X. If they are repeated it may result in time spent with being altered. Those orders of 16 January 2017 are as follows:-
“(1) A Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:-
(a) to find and recover the child X born (omitted) 2007 (‘the child’) and to deliver the said child to the Applicant father at (omitted) in the State of Victoria, or such other place as the Applicant and the person effecting such recovery agree to be appropriate; and
(b) to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
(2) Order 6(c) of the Orders made 19 August 2016 is discharged.
(3) Until further order the child shall spend time with his mother as agreed in writing between his parents.”
Section 61C and section 61D of the Act are as follows:-
“FAMILY LAW ACT 1975 - SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. Seesubsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
FAMILY LAW ACT 1975 - SECT 61D
Parenting orders and parental responsibility
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.”
I am satisfied that X will benefit from the input of both parents to matters of parental responsibility. I agree with the Independent Children’s Lawyer that no order should be made on the evidence and that X’s best interests will be promoted by his parents having parental responsibility for him as his biological parents, not subject to court order.
The court will make orders supported by these reasons and otherwise dismiss the proceedings.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 February 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Appeal
-
Jurisdiction
-
Remedies
0
0
2