Janome & Janome

Case [2022] FedCFamC1F 90

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Janome & Janome [2022] FedCFamC1F 90

File number(s): NCC 104 of 2017
Judgment of: AUSTIN J
Date of judgment: 28 February 2022
Catchwords: FAMILY LAW – CHILDREN – PARENTING – With whom the child shall live – Where final parenting orders were previously made for the child to live with the mother and spend time with the father – Where current proceedings commenced by the father due to the mother’s refusal to allow the child to spend time with him – Where both parties seek sole parental responsibility and the child’s residence – Where mother alleges the child is at unacceptable risk of harm from sexual and physical abuse in the father’s care – Where the mother alleges the child has been sexually abused by the father and other men – Where the father has repeatedly denied the allegations – Where the mother’s allegations not substantiated by the evidence – Where the mother failed to establish the father poses any material risk of harm to the child – Where the father alleges the child is at unacceptable risk of emotional harm in the mother’s care – Where it is found the child has suffered psychological harm in the mother’s care and requires protection from further psychological harm – Where the presumption of equal shared parental responsibility is rebutted – Ordered that father have sole parental responsibility for the child – Child live with the father and only spend time with the mother as determined by the father as an incident of his exclusive parental responsibility – Restraint on mother coming into contact with the child without the express written consent of the father – Father to engage a therapist for the child – Child’s name to be placed on the Airport Watch List for 12 months.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA 65D, 65DAA, 65DAC, 65DAE, 65Y
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662

RCB v The Honourable Justice Forrest (2012) 247 CLR 304
Division: Division 1 First Instance
Number of paragraphs: 122
Date of hearing: 14, 16 & 17 February 2022
Place: Newcastle
Counsel for the Applicant: Ms Ticehurst
Solicitor for the Applicant: Arnold Lawyers
Counsel for the Respondent: Ms Kaiti
Solicitor for the Respondent: Tee Legal
Counsel for the Independent Children's Lawyer: Ms Lioumis
Solicitor for the Independent Children's Lawyer: Legal Aid NSW, Newcastle

ORDERS

NCC 104 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR JANOME

Applicant
AND:

MS JANOME

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 FEBRUARY 2022

THE COURT ORDERS THAT:

1.All former orders in respect of the child X, born 2015, are discharged.

2.The father shall have sole parental responsibility for the child.

3.The child shall live with the father.

4.The father shall forthwith engage a therapist at his expense, for as long as the therapist deems necessary, to counsel the child…

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AGLC
Janome & Janome [2022] FedCFamC1F 90
Case
[2022] FedCFamC1F 90
Decision Date

CaseChat Overview and Summary

The case of Janome & Janome, recently decided in the Family Court of Australia, involves a dispute between the parents of a six-year-old child over the child’s residence and contact arrangements. The child was born in 2015, and the parents separated in December 2015, with the mother initially taking the child to India before they returned to Australia in 2016. The father has been seeking a change in the child’s residence to live with him and for more regular contact since the parties separated. The mother has resisted these applications, alleging that the child was sexually abused by the father and other men, as well as being physically and emotionally abused by the father. The mother’s allegations have not been substantiated by the child welfare agency, but they have led to the cessation of contact between the father and the child.

The legal issues in the case revolve around the best interests of the child and the allocation of parental responsibility. The Court had to consider the child’s need for a meaningful relationship with both parents, the potential harm the child may suffer if he continues to live with the mother, and the advisability and practicability of the child living with the father. The Court also had to consider the mother’s allegations of abuse and whether they had any bearing on the child’s residence and contact arrangements.

The Court found that the mother’s allegations of abuse were not substantiated and that the child’s residence with her was causing him significant psychological harm. The Court accepted the evidence of the Family Consultant that the child would benefit from a meaningful relationship with the father, but that this could not occur if he continued to live with the mother. The Court found that the child’s initial distress at having his residence reversed would be outweighed by the long-term benefits of living with the father. The Court also found that the mother’s genuine belief in the child’s abuse by the father deprived her of the capacity to support the child’s relationship with him.

The Court made orders for the parties to have equal shared parental responsibility for the child, for the child to live with the father, and for the child to spend substantial and significant time with the mother. The Court ordered that the mother’s contact with the child be supervised by a third party, pending a future review of the child’s relationship with the mother. The Court also ordered that the father pay the mother child support and that the parties cooperate in making arrangements for the child’s contact with the mother.

In summary, the Court found that the child’s best interests would be served by a change in his residence to live with the father, despite the initial distress this would cause him. The Court accepted that the child would benefit from a meaningful relationship with the father, but that this could not occur if he continued to live with the mother. The Court also found that the mother’s allegations of abuse were not substantiated and that they had caused the child significant psychological harm. The Court made orders that the child live with the father and spend substantial and significant time with the mother, with the mother’s contact being supervised.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother failed to establish the father poses any material risk of harm to the child, whereas the evidence established the mother actually does cause the child emotional harm. The essential decision then devolved to whether the child should bear the emotional distress of the reversal of his residence for his long-term benefit or whether the intensity of such distress militated against any change to the status quo. The first option prevailed.BACKGROUND The parties met online in about 2013, when the father lived in Australia and the mother lived in India. The father travelled to India to meet the mother and they married there in 2013, shortly after which the father returned alone to Australia. The parties commenced cohabitation about a year later, when the mother came to Australia in December 2014. The child was born in 2015. He is now six years of age. The parties separated in December 2015. Almost immediately afterwards, the mother took the child to India, where they stayed for several months. Upon their return to Australia, the parties consensually arranged for the child to commence spending time with the father from about October 2016. The father first commenced proceedings in January 2017. In those proceedings, even though the parties contested the child’s residence, the mother acknowledged they should have equal shared parental responsibility for the child and it was agreed the child should spend substantial time with the non-residential parent. Those proceedings were concluded in April 2019 when orders were made for the parties to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend time with the father. From September 2018, the mother began intermittently reporting to the State child welfare agency her concerns about the child’s sexual abuse by her former neighbour (Mr R), the father and other unidentified men, as well as the father’s physical and emotional abuse of the child. In all, about a dozen reports of such abuse were made in the period between September 2018 and September 2020. The reports were investigated by the child welfare agency and, in December 2019, some of the more recent reports about the father were substantiated, though he contended the decision was dubious and ought to be disregarded. The issue of the child’s alleged abuse was an increasing irritant and eventually, in about October 2019, the mother acted upon her concerns by severing the child’s contact with the father. The father responded by commencing these proceedings in November 2019 in the Federal Circuit Court of Australia (as the Court was then known). In December 2019, interim orders were made suspending the orders made in April 2019, though the Court intended that the issue of the child’s interaction with the father would be given further consideration on the next return date (Order 3 made on 10 December 2019). For reasons which are entirely unclear, that never occurred, even though the proceedings were back before the Court on many subsequent occasions. Not even the parties’ separate interim applications, later filed in September 2020 and November 2020, were entertained.

Evidence

Evidence Before The Court

The Independent Children’s Lawyer (“the ICL”) began the trial without forecasting any particular inclination, but at the close of evidence tendered a minute of proposed orders,[1] which was closely aligned with the position adopted by the father.[1] Exhibit ICL1THE EVIDENCE The father relied upon:(a)his affidavit sworn on 20 December 2021;(b)the affidavit of the mother’s former neighbour, Mr R, filed on 20 December 2021; and(c)the affidavit of his partner, Ms T, filed on 20 December 2021. The mother relied upon:(a)her affidavit filed on 31 December 2021, as amended and supplemented by two tendered documents;[2] (b)the affidavit of the maternal grandmother filed on 29 December 2021; and(c)the affidavit of Dr U filed on 11 February 2022 (subject to an objection taken and conceded to some portion of the contents of Annexure B).[2] Exhibits M1 and M2 The mother also sought to rely upon two affidavits filed by the child welfare agency’s two caseworkers much earlier in the proceedings, but leave to do so was refused since no satisfactory reason was advanced to explain why the procedural orders of Cleary J should be varied.[3] Besides, there was no suggestion the mother would be able to make the caseworkers available for cross-examination on their affidavits.[3] Orders 3.2, 5 and 7 made on 28 September 2021 The parties and the ICL also relied upon:(a)the Family Report prepared by the Family Consultant on 5 August 2021; and(b)the Magellan Report dated 9 April 2021, provided to the Court by the State child welfare agency. The ICL collated a tender bundle of documents pursuant to the procedural order made by Cleary J,[4] which was only provisionally received in evidence as an exhibit,[5] since the content of such source documents was already extensively covered by the commentary in both the Family Report and Magellan Report, about which there was no apparent factual controversy. The parties and the ICL conceded that any document within the tender bundle not mentioned during the trial, in either cross-examination or submissions, must not be relevant and could therefore be rejected. As it transpired, only 18 of 225 documents were mentioned, so they were separately tendered as exhibits[6] and the remainder of the tender bundle was removed from the court record as an exhibit.[4] Order 5 made on 28 September 2021[5] Provisional Exhibit A[6] Exhibits A1 to A18 The mother sought to separately tender another bundle of documents at the commencement of the trial, but was disallowed. It amounted to over 300 pages, had not been shown to the father or the ICL until very shortly before the trial started, and was said to contain many documents which duplicated those among the tender bundle prepared by the ICL. The mother was invited to cull her bundle and later renew her application to tender it, but she did not do so.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

Decision

Reasons for decision

No other factors prescribed by s 60CC(3) of the Act were engaged by the submissions made by the parties or the ICL.CONCLUSIONS The evidence of the parties’ intractable conflict easily rebuts the presumption of equal shared parental responsibility (s 61DA(4)). The parties’ mutual proposal for the residential parent to have sole parental responsibility for the child was endorsed by both the ICL[84] and the Family Consultant.[85] [84] Exhibit ICL1, Order 3[85] Family Report at [222]–[223] The question of with whom the child should live turned on the answer to this conundrum: Should the child:(a)continue to live with the mother to avoid the emotional upheaval caused by the reversal of his residence, but then have to bear the long-term adverse psychological effects of having no paternal filial relationship and falsely believing he was sexually abused? or(b)be forced to endure the immediate distress of being shifted to live with the father, whom he currently fears as being dangerous, in the expectation that in time he will probably come to recover his meaningful relationship with the father, learn through experience that the father is no threat to him, and possibly be able to later restore his relationship with his mother? If the child remains living with the mother, his withering relationship with the father will soon die. As the Family Consultant correctly predicted,[86] the mother will almost certainly not accept the finding that the father poses no risk of harm to the child and, if the child remains living with her, could not bring herself to support the child’s continuing relationship with the father, even if orders were made expressly directing the child to spend time with the father. Any such orders would surely be breached because the child, realising the mother’s continuing objection, would resist seeing the father and the mother would then accede to the child’s resistance. More litigation would probably follow and the same problem requiring resolution now would present for resolution again.[86] Family Report at [143(b)], [143(g)], [166], [174], [178], [362], [372], [377] and [380] The Family Consultant said this in the Family Report about the harm the child was liable to suffer if he remains in the mother’s care (assuming the father poses no risk of harm to him), about which opinion she was not challenged in cross-examination:[87]…it is probable [the child] would continue to experience psychological harm from the mother in the future and this could be accentuated when [the child] is a teenager and is experiencing different views and beliefs from the mother. The long-term impact upon [the child] if he is experiencing such psychological abuse could be debilitating and could lead to significant psychological issues for [the child].[87] Family Report at [378] The combination of the Family Consultant’s written and oral evidence was that the child would most likely sustain serious and long-lasting psychological harm if he remains living with the mother. Such evidence militates in favour of the child’s residence being reversed, but the countervailing problem is forecasting the way in which the child might adapt to living with the father. For the reasons given in the discussion of s 60CC(3)(d) of the Act, the child will be initially distressed by his removal from the mother’s care, but will likely settle with the father reasonably soon. The initial emotional upheaval he will experience in having his residence reversed, while regrettable, is necessary to avoid the greater detriment of the psychological harm he will experience if he continues to live with the mother.

Ratio Decidendi

Legal Principle Established

In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.CHILDREN’S BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) No submission was usefully made about the application of this provision, which requires the Court to consider the benefit to the child of having a meaningful relationship with both parents. It may be accepted the child enjoys a close and loving relationship with the mother and, while he also did so with the father until late 2019, that cannot be the case now. The absence of any interaction between them since October 2019 must have caused the meaningfulness of their relationship to have waned. The child would surely benefit from reviving and maintaining his meaningful relationship with the father, presuming he is safe in the father’s care, but that can never happen whilst ever the child lives with the mother. Her genuine belief in the child’s sexual and physical abuse by the father deprives her of the capacity to support the child’s relationship with the father. While the father sought orders which would conversely eliminate the mother from the child’s life, he was at least willing to countenance the prospect of some future relationship between the child and the mother. The father deposed this in his affidavit:95.The other issue is question of managing the potential need for [the child] to have a relationship with his mother. [The mother] has obviously being the primary carer for [the child] since birth and despite my disappointment with what has unfolded in terms of the opportunity given to [the child] and I to have a relationship, I acknowledge that his bond with [the mother] will at least at this point be stronger than with me. As such, I believe that it could be important for [the child] to have an opportunity to maintain a relationship with [the mother] where that remains safe to occur including, if need be, through supervised time between them. The father’s counsel also foreshadowed this in his Case Outline document:15.The grey area of the father’s case is whether or not any orders should be proposed for the mother to spend time with [the child]. If the father’s case theory is accepted, it would appear that the family consultant would not support a “spend time order”.16.However, the father is open to exploring the options, such as supervised time after a period of settling in, subject to the expert’s evidence. The father was not challenged in cross-examination about that evidence or those submissions. As the evidence stands, just as the Family Consultant foresaw,[7] it will surely be difficult for the child to have meaningful relationships with both parents, but that goal is easier to achieve if he lives with the father.[7] Family Report at [359], [382] and [386]Section 60CC(2)(b) – alleged sexual abuse