Jennings & Jennings

Case [2021] FedCFamC1F 314

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jennings & Jennings [2021] FedCFamC1F 314

File number(s): BRC 3275 of 2019
Judgment of: HOWARD J
Date of judgment: 16 December 2021
Catchwords: FAMILY LAW – PARENTING – INTERNATIONAL RELOCATION – where the mother seeks that the child live primarily with her in New Zealand – where the child presently lives with the father in Australia – allegations of family violence – where there is an extensive history of family violence perpetrated by the father against the mother – prolonged pattern of abuse – where the family report writer made recommendations predicated on an assumption the father had gained insight – where the Court concluded that the father had not gained insight into his behaviour and had continued perpetrating family violence – family report but once piece of evidence – where the Court is in the position to make an assessment of all of the evidence and make findings of fact – child to live with the mother – mother permitted to relocate the child’s residence to New Zealand.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Albert v Plowman [2020] FamCAFC 23

Baghti & Baghti & Ors [2015] FamCAFC 71

Banks v Banks (2015) FLC 93-637

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

Calvert & Madock [2020] FamCA 219

Cox v Pedrana (2013) 48 Fam LR 651

Eagle & Scarlett (No.2) [2020] FamCAFC 291

Hall and Hall (1979) 5 Fam LR 609

Qantas Airways Ltd v Gama (2008) 167 FCR 537

U v U (2002) 211 CLR 238

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Number of paragraphs: 172
Date of last submission/s: 22 September 2021
Date of hearing: 16, 17 & 18 June 2021
Place: Brisbane
Counsel for the Applicant: Mr Bunning
Solicitor for the Applicant: SJP Law
Counsel for the Respondent: Ms Martinovic
Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Dodd
Solicitor for the Independent Children's Lawyer: Life Law Solutions

ORDERS

BRC 3275 of 2019

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

MR JENNINGS

Applicant
AND:

MS JENNINGS

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

16 DECEMBER 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the Independent Children’s Lawyer shall provide a copy of a proposed final order (reflecting the reasons for judgment) to each other party (and to the Court) within 21 days of date of these Orders.

2.That the parties shall attempt to reach an agreed position in relation to the wording of the final order (reflecting the reasons for judgment) and shall send a copy of same to the Court within a further 14 days of receiving the Independent Children’s Lawyer’s proposal in accordance with the preceding Order.

3.That in the event the parties are unable to reach an…

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AGLC
Jennings & Jennings [2021] FedCFamC1F 314
Case
[2021] FedCFamC1F 314
Decision Date

CaseChat Overview and Summary

Jennings & Jennings involved a dispute between the father and mother over the primary care of their child, X, and the court had to determine the best interests of the child. The mother sought to move to New Zealand with the child, while the father opposed this move and argued that the child should remain in Australia. The legal issues the court had to decide included the extent of family violence perpetrated by the father against the mother and the impact of this on the child, as well as the potential disruption to the child's life if he were to move to New Zealand with his mother.

The court accepted the mother's evidence of family violence, including incidents of physical abuse and psychological control. The court found that the father had perpetrated family violence against the mother in the presence of the child, X, and his sister, Y. The court noted that the evidence led inexorably to the conclusion that the child should be living with the mother in New Zealand to protect him from further harm. The court also considered the family violence order in place, which required the father to be of good behaviour for five years. The court was not satisfied that the father had demonstrated an openness to change and that the risk to the child remaining in the primary care of the father outweighed any disruption that may be experienced by the child moving to New Zealand with his mother.

The court concluded that it was in the best interests of the child to move to New Zealand with his mother and sister, and made orders accordingly. The court rejected the father's argument that the move would be hugely disruptive for the child and found that the risk to the child remaining in the primary care of the father outweighed any potential disruption. The court also noted that the mother and child had a strong relationship with each other and with the child's sister, and that the move to New Zealand would provide the child with a safe and stable environment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The father maintains that at no stage was the mother in danger. The father maintains he would not have carried out the threat. The mother did not see things the same way. The mother feared for her life. The mother took the children and left the family home and went to stay in a women’s refuge in J Town. I accept the mother’s evidence in relation to this incident. Further evidence of family violence perpetrated by the father – including the father preventing the mother from maintaining her connection to family and friends I accept the mother’s evidence that the father would keep tabs on her movements as a way of controlling the mother. I note the evidence of the mother contained in paragraphs 52 and 53 of her trial affidavit:-“52. If I did have a client in the late afternoon or on a Saturday, he would make sure to come to the office (his U Company business where I ran my business from the mezzanine floor inside the building) and wait for me as a 'surprise' and 'bring X down to see me'. I felt that this was his way of controlling and keeping me in check to make to make sure I wasn't having an 'affair'.53. In addition to being verbally and physically abusive, Mr Jennings was very controlling, and he tried to isolate me from my family. My parents lived on the outskirts of Brisbane, but we did not see them often when I lived in Location C because Mr Jennings did not like me spending time with my family. When I visited friends or family, he would make me feel guilty and would message me constantly when I was out. He would not let me take X to see my parents. I was able to go visit my friend Ms K, however he would message me always asking when I was to be home, saying he misses me and wanted me to come home earlier, using reasons like ‘I thought we could go for a nice coffee before X had to be picked up’, or ‘I was hoping to have lunch with you, take you some place nice’.” I accept this evidence from the mother. Specifically, I accept that the father discouraged the mother from visiting friends or family. I accept that he did this by making the mother feel guilty and by messaging her constantly when she was out. I accept the mother's evidence that the father tried to undermine her own relationship with her parents. I note and accept the mother’s evidence contained in paragraph 55 of her trial affidavit:-“55. Mr Jennings tried to undermine my relationship with my parents. He would say bad things about my parents and try to convince me they were bad people. My time with them was limited and each time I would go and see them, he would make me feel bad about going to see them. Mr Jennings stated once; "Until your parents step up and be grandparents and babysit X when we want them to they are not allowed to see X". One time when I took X, he called the police on me. He would not allow X to attend Y's 9th birthday party, because she wanted to include everyone. Which included, Mr Jennings, X, me, Y's father her grandparents and her aunty and cousin on her dad's side.”

Decision

Reasons for decision

I have referred earlier to the decision in Banks. There is a reference there to situations where the evidence “leads inexorably to a particular conclusion”. Given the extent of the evidence concerning family violence in this case and the central findings that will be made in these reasons for judgment – my view is that the weight of that evidence does lead to a particular conclusion – namely that the child should be living with the mother in New Zealand. I am aware that the family report writer refers to certain reasons why the child ought to remain with the father – but I have considered these aspects in detail later in these reasons for judgment. For present purposes it is important for the Court – in a somewhat chronological way – to refer to the evidence of family violence. I reject the father’s testimony that he did not “frequently threaten Ms Jennings with violence” (father’s trial affidavit, paragraph 100). I begin my consideration of the evidence of family violence in the case by noting that I accept the following evidence from the mother:-(a)Shortly after the parties moved in together in April 2012 the father held the mother down on the bed to stop her getting up to go to attend to young Y who was crying at the time (at night). Y was aged 3 at the time. The father did eventually let the mother go to attend to the child (mother’s trial affidavit, paragraph 44) (note s 60CC(3)(j)); and (b)Within the first two months that the parents were living together the father had sat the mother down on two occasions to explain to her all of the things that she was doing wrong (mother’s trial affidavit, paragraph 45). The July 2014 incident I note the following evidence from the mother:-“47. Mr Jennings and I got into an argument over something the night before; I cannot remember what it was. He slept downstairs and, in the morning, when I went down I sat by him on the couch. I had made coffee for both of us. Mr Jennings did not want to talk about it, I said no problem and just sat there drinking my coffee.48. Mr Jennings sat quiet for about a minute then erupted in anger. I could not understand what was happening. He blamed me for starting the fight when he told me he did not want to talk about it, I explained I did not, this escalated to him throwing coffee cups at my feet breaking them on the tiles and smashing around my legs. He threw a crystal bowl onto the tiles that smashed and tried to throw the water filter off the bench 3 times but could not. I remember asking what was happening right now as I had never seen anything like this behaviour before. He was yelling something about being a cunt and this is what cunt's do and, I cannot remember much except I started to pick up the lemons from the floor that were in the crystal bowl and not understanding any of his response. He went upstairs to wake Y up as he wanted me to tell her something and kept saying "Mummy wants to tell you something Y".49. I did not know what I was supposed to tell her so I told her to go back to bed and I couldn't understand why he had to get her involved. Then he threw a full sold plastic water bottle at my sternum that winded me and dropped me to the ground. He then stood over me still yelling and then left me there and went to the office. He later claims he tried to hit the glass door behind me, but he knows how to aim well as he throws knives at target boards etc. Y came down the stairs after he left to find me cleaning up all the glass etc and asked me "why are you cleaning that up mummy when Mr Jennings was the one who made the mess?…”

Ratio Decidendi

Legal Principle Established

Section 60CC then sets out how it is that a Court is to determine what is in a child's best interests. Section 60CC(2) and (2A) state:- “Primary considerations (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).” The second stated primary consideration (section 60CC(2)(b)) is to be given greater weight than the consideration set out in section 60CC(2)(a). This is the importance that the Parliament has mandated that the Courts are to place upon “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” The evidence discloses that over a protracted period of time the father perpetrated family violence against the mother in the presence of the child Y and in the presence of the child X. The children witnessed physical violence perpetrated by the father against the mother. The family (comprising the mother, X and his sister Y) were subjected to, or exposed to, family violence perpetrated by the father for many years. I note that in the additional considerations set out in section 60CC(3) the Court is required to consider any family violence involving the child or a member of the child's family (section 60CC(3)(j)). The Court is also to consider the nature and the circumstances surrounding/connected to the making of any family violence order (section 60CC(3)(k)). There is in place a family violence order in the current case. The order was obtained by the Police in March 2017. The mother and the children – X (the subject child) and Y are stated as “the aggrieved” (note the Tender Bundle marked as Exhibit 1, page 10). The father is the respondent. The protection order was made by a Magistrate in Queensland on 20 March 2017 and it requires the father to be of good behaviour for 5 years. The order was initially in place until 19 March 2019. The protection order was subsequently varied on 21 August 2017 and again on 18 April 2018 – the latter of which extended the protection order until 18 April 2022 (Exhibit 1, page 12). I note that the family report writer is of the view that the move to live with the mother in New Zealand would be “hugely disruptive” for X. That may be so, but in weighing the various considerations (which will be referred to here in these reasons for judgment), the Court has come to the conclusion that such a disruption is in the best interests of the child. The Court is far from satisfied that this father has “demonstrated an openness to change” as referred to by the family report writer. In those circumstances the risk to the child remaining in the primary care of the father in Australia outweighs any disruption that may be experienced by the child moving to New Zealand to live with his mother and his sister. The evidence in relation to family violence