JANOME & JANOME - [2019] FCCA 1036

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANOME & JANOME

[2019] FCCA 1036

Catchwords:
FAMILY LAW – Parenting – Dispute about which parent a child aged 3 ½ should primarily live with – where an expert’s report was prepared – where the expert concluded that the mother had a paranoid personality disorder or paranoid personality traits – where the report is fundamentally flawed and was discredited at trial – where there is no evidence that the mother has a mental illness of any kind – where the father’s conduct in inducing this belief in third parties including the expert gives rise to grave concern about his parenting capacity – where the Independent Children’s Lawyer nevertheless submitted that the child should live with the father – where the Independent Children’s Lawyer submitted that the child was at risk of psychological harm from the mother as a result of the mother twice taking the child for medical investigations and on one occasion alleging that the child had made disclosures of sexual abuse by a third party – where three separate issues of this nature occurred in the eight months prior to the trial but where they were each quite different and on the whole of the evidence do not establish that the mother poses a risk of psychological harm to the child – orders made for the child to live with the mother and spend time with the father – where the father sought to have the child’s name placed on the Watch List indefinitely – where there is no evidence supporting the necessity for such an order – where this application is dismissed.

Legislation:

Children and Young Persons (Care and Protection) Act 2011 (NSW), s.128

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 65DAC

Applicant:

MR JANOME

Respondent:

MS JANOME

File Number:

NCC 104 of 2017

Judgment of:

Judge Terry

Hearing dates:

25, 26, 27 & 28 March 2019

Date of Last Submission:

28 March 2019

Delivered at:

Newcastle

Delivered on:

10 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Tregilgas

Solicitors for the Applicant:

Turnbull Hill Lawyers

Counsel for the Respondent:

Mr Weightman

Solicitors for the Respondent:

Michelle Thomas Solicitor

Solicitor Advocate for the Independent Childrens Lawyer:

Ms O’Rourke

Solicitors for the Independent Childrens Lawyer:

Legal Aid NSW Newcastle

ORDERS

All previous parenting orders concerning the child [X] born … 2015 (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father as agreed between the parties but failing agreement:
(a)Until the child commences school:
(i)In week 1 from 10.00am on Thursday to 10.00am on Saturday; and
(ii)In week 2 from 10.00am on Saturday to 10.00am on Monday.
(b)When the child commences school:
(i)From the conclusion of school each Wednesday to the commencement of school on Thursday during school terms.
(ii)Each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday.
(iii)During the…

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 JANOME & JANOME

Details

AGLC: Janome and Janome [2019] FCCA 1036
Case: [2019] FCCA 1036
Decision Date: 10 April 2019

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2015, with the proceedings brought before Judge Terry. The dispute involved allegations of family violence by the mother against the father, including shouting, throwing objects, verbal abuse, and physical intimidation through the installation of CCTV cameras in the family home. The father denied these allegations, asserting the cameras were for his protection. The mother also alleged the father restricted her food, called her names, and took photos and videos of her after the child's birth. The court was required to consider the primary considerations under the *Family Law Act 1975*, including the benefit to the child of a meaningful relationship with both parents and the need to protect the child from harm.

The court's reasoning focused on the paramount consideration of the child's best interests. Judge Terry found that while the father had not spent time with the child between late 2015 and late 2016, he had since demonstrated a genuine desire to be part of the child's life and had spent time with the child regularly. The mother was found to have been consistently committed to the child's care. The court considered the Independent Children's Lawyer's submission that a change in primary care might protect the child from psychological abuse by the mother, stemming from her repeated hospital visits for the child. However, the court ultimately determined that the child would benefit from having a meaningful relationship with both parents, and that the mother did not denigrate or disrespect the father, mitigating concerns about the child's relationship with her being undermined. The court also noted the proximity of the parents' residences, minimising practical difficulties in shared time.

The court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the mother, with specific provisions for the child's time with the father, varying based on whether the child had commenced school and including detailed arrangements for school holidays and public holidays. The father's application for an order restraining the removal of the child from Australia was dismissed. The orders also included provisions for notification of medical emergencies, access to school information, and the exchange of contact details.

Orders

Orders of the court

All previous parenting orders concerning the child [X] born … 2015 (“the child”) are discharged.

The parties shall have equal shared parental responsibility for the child.

The child shall live with the mother.

The child shall spend time with the father as agreed between the parties but failing agreement:

(a) Until the child commences school:

(i) In week 1 from 10.00am on Thursday to 10.00am on Saturday; and

(ii) In week 2 from 10.00am on Saturday to 10.00am on Monday.

(b) When the child commences school:

(i) From the conclusion of school each Wednesday to the commencement of school on Thursday during school terms.

(ii) Each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school on Monday.

(iii) During the Terms 1, 2 and 3 school holiday periods for the first half of the holidays in odd-numbered years and the second half of the holidays in even-numbered years.

(iv) During the first and second Term 4 school holiday periods after the child commences school in a week about arrangement commencing at 10.00am on the first Saturday of the holidays in the first year of school and commencing at 10.00am the second Saturday of the holidays in the second year of school.

(v) Thereafter during the Term 4 school holiday periods from 10.00am on the first Saturday of the holidays to 5.00pm on the Saturday which is the midpoint of the holiday period in even numbered years and from 10.00am on the Saturday which is the midpoint of the holidays to 5.00pm on the last Saturday of the holidays in odd numbered years.

Notwithstanding any other order:

(a) In odd numbered years, the child shall spend time with the mother from 1.00pm on Christmas Eve to 1.00pm on Christmas Day and with the father from 1.00pm Christmas Day to 1.00pm Boxing Day.

(b) In even numbered years the child shall spend time with the father from 1.00pm on Christmas Eve to 1.00pm on Christmas Day and with the mother from 1.00pm Christmas Day to 1.00pm Boxing Day.

Notwithstanding any other order the child shall spend time with the non-resident parent on his birthday between 10.00am and 2.00pm if a non-school day and from the conclusion of school to 6.00pm if a school day.

The father’s time with the child is suspended from 5.00pm on the day before Mother’s Day to 5.00pm on Mother’s Day.

The mother’s time with the child is suspended from 5.00pm on the day before Father’s Day to 5.00pm to Father’s Day.

When changeover does not occur at the child’s school, changeover will occur at Town A McDonalds.

10.

Each party shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.

11.

Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.

12.

The parents shall keep each other informed of their landline and mobile telephone number, residential address and email address and advise the other parent of any changes to the same within 7 days of any such change occurring.

13.

The father’s application for an order that until further order or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, MR JANOME BORN … 1975 and MS JANOME born … 1983 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child [X] born … 2015 from the Commonwealth of Australia AND IT IS REQUESTED that the Australia Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist, until the court orders its removal IS DISMISSED.

Background

Background to the litigation

I must consider the child’s maturity, sex and background. The child is Indian but so are both parents. The father wants to prevent the mother taking the child to India for visits. I will deal with that later as a separate issue. I must consider issue of family violence. The mother made allegations about behaviour by the father that came within the definition of family violence. She said that he would get very angry about the state of the house and would shout, that on one occasion he threw a stool at her which did not hit her and that he walked out of the kitchen banging the door so hard the handle flew off. The mother alleged that the father verbally abused her and that on one occasion he became angry and pushed her head into the wall behind her. She alleged that in October 2015 he raised his hand as if to hit her after an argument over whether she could use the internet and the modem fell off the table. There is reference to that allegation in an email the mother sent to a friend at the time. The mother also alleged the father did not always let her use the internet to contact her family and that he was financially controlling. The mother would go next door and talk to Ms D and tell her about some of her concerns and ask to use her internet so that she could contact her family. Eventually Ms D called the police who visited the home and following that, in or about October 2015, the father installed CCTV cameras in the house. I am not sure whether there were three or four. At trial I was told there was one in the kitchen, one in the hallway and one in the living area. The mother said in her affidavit there were two on top of the fridge and two near the television and that wires were connected to the guest room where the paternal grandmother slept. FACS saw three CCTV cameras. They said that there was one on top of the fridge looking down the hallway. I cannot recall where they said the other two were. There is no doubt that the father installed CCTV cameras in the house and there is no doubt that the mother found the presence of the cameras intimidating. She commented on this to Ms D at the time. The father said that the cameras were there for his protection and that they simply recorded and he did not view the footage remotely. The mother said she thought that he did view the footage remotely. It would be unsafe for me to make a finding one way or the other about that given that I cannot see the cameras, cannot see the program and do not know on what basis each of the parents made those assertions. However the cameras were on 24 hours a day on the father’s own admission, so they were on when the father was not home, and there is no doubt that the mother found them intimidating. The mother also claimed that after [X]’s birth the father began restricting her food, called her names, dictated to her what she could eat and took photos and videos of her. Some of those allegations were discussed with FACS during their visits to the home in late 2015. The father denied the allegations. He could not deny having put the cameras there but he denied that he had been violent or abusive toward the mother in any way.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or make decisions about the child. I am satisfied for reasons I have already given that the father did not make any effort to spend time with the child between December 2015 and September or October 2016 when he realised that the mother was back in Australia. He provided no adequate explanation for this and I do not accept that he could not have located the mother much earlier had he wished to do so. However since late 2016 he has spent time with the child regularly and I am satisfied that he does genuinely want to be part of the child’s life. The mother has been committed to caring for the child throughout his life. I must consider the issues of child support. The father said that he earned $2000.00 a week and paid child support as assessed. That was not challenged and I accept that is the case. I must consider the likely effect of any change in the child’s circumstances. The Independent Children’s Lawyer’s case was that a change of primary care would be beneficial because it would protect the child, to an extent at least, or perhaps to put it another way would lessen his exposure to, psychological abuse perpetrated by the mother in taking him for repeated medical examinations. She submitted that the child would readily adapt to this change given that he had a good relationship with the father and that the father was a capable parent and the child would still be seeing the mother regularly. The father’s case was similar, in that he said that the child would readily adapt to the change as he was the child’s primary attachment figure. I do not accept that but I do accept that the child is attached to him and that he provides good day-to-day care for the child so from that perspective there is strength to a degree in his submission that the child would readily adapt to the change. The father said that the change would be beneficial because he could provide better day-to-day care in terms of feeding the child and keeping a clean house. He also did not resile from the case that the mother had a mental illness, although he did not really explain how this played into his proposal. The father’s case was that the likely effect of change would be beneficial and that [X] would easily adapt to it. The mother proposed no change and I will have to assess at the end of the case, after taking into account the remainder of my findings, whether a change to the child’s current living arrangements is likely to be beneficial or detrimental for the child. I must consider the practical difficulty and expense of the child spending time with a parent. That is not an issue in this case. The parents live in Town A and Town O. They are about 10 kilometres apart. There is no practical difficulty or expense in the child spending time with each of them regularly. There could be an issue with choice of school depending on where the child primarily lives but whichever school is chosen the other parent will be living close enough to be able to easily attend school events and parent/teacher events.

Ratio Decidendi

Legal Principle Established

I then have to go back to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of his parents. [X] will have that opportunity if he spends a reasonable amount of time with each of his parents and it does not matter whether he spends more time with one or more time with the other. He will still have the opportunity, if he sees each of them regularly, to have a meaningful relationship with them both. However his opportunity to have a meaningful relationship with his mother could be compromised if the father has an extremely poor attitude to the mother, continues to promote the idea that she has a mental illness and shows a lack of respect for her and a lack of understanding of the fact that people are different and that their housekeeping standards and ways of caring for a child are different. If the father has a poor attitude to the mother and does not let go of some of his beliefs about her, there is a risk that [X]’s relationship with the mother could be undermined if he spends more of his time with his father than with his mother. The mother does not lack respect for the father. She readily agreed to the father spending time with [X] as soon as the father realised the mother was back in Australia and asked to spend time with him. The fact that she would not initially agree to as much time as the father wanted is not a reason to be critical of her given [X]’s age and the history of his care. There is also ample evidence in the mother’s affidavit of text message exchanges between the parties changing times around when the father requested it. There is no evidence that the mother denigrates or disrespects the father. I do not have that same concern that [X]’s relationship with one of his parents will be impacted on by a poor attitude if [X] lives primarily with the mother. The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no evidence that the mother is likely to neglect the child. Neglect is a very serious form of not looking after a child. There is also no evidence that the child is likely to be exposed to family violence in her care but the Independent Children’s Lawyer suggested, if I understand her case correctly, that the child might be abused by the mother. Abuse has a very particular definition in the Family Law Act. It includes sexual assault and nobody is alleging that is going to occur. It includes involving the child in sexual activity and that is not alleged. It includes serious neglect but that is not alleged. However it is also defined to mean causing the child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence. The Independent Children’s Lawyer’s case seemed to be that the mother repeatedly taking the child to a hospital to be checked out and making a complaint about Mr R, when looked at as a group of incidents, indicated that the mother was subjecting the child to abuse in that the child was being placed at risk of serious psychological harm.