Jonas and Mears - [2017] FCCA 2230

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONAS & MEARS

[2017] FCCA 2230

Catchwords:
FAMILY LAW – Parenting – dispute about the time the father should spend with his daughter aged 10 – where the child wishes to spend time with her father – where the father is “narcissistic and entitled,” denigrates the mother to the child, models poor behaviour to the child and is extremely difficult for the mother to deal with – where the father has a history of using illicit drugs and refuses to do drug tests – where the mother proposes professionally supervised time on four occasions each year – where the Independent Children’s Lawyer proposes unsupervised time one day each month – where the court is not prepared to make an order for unsupervised time – order for bi-monthly professionally supervised time.

Legislation:

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

Hungerford & Tank [2007] FamCA 637
Rice & Asplund (1979) FLC 90-725

Applicant:

MS JONAS

Respondent:

MR MEARS

File Number:

NCC 1733 of 2013

Judgment of:

Judge Terry

Hearing dates:

24, 25 and 26 July 2017

Date of Last Submission:

26 July 2017

Delivered at:

Newcastle

Delivered on:

16 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Mooney

Solicitors for the Applicant:

Ashby Family Solicitors

The Respondent:

In person

Solicitor Advocate for the Independent Children’s Lawyer:

Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Port Macquarie

ORDERS

The child X born (omitted) 2007 (“the child”) shall live with the mother.
The mother shall have sole parental responsibility for the child.
The father shall spend time with the child on first Saturday each alternate month commencing in October 2017 supervised by a service provider such as Rekonnect or Big Brown House.
The mother shall promptly contact a supervised service such as Rekonnect or Big Brown House and make an arrangement for the father to spend time with the child on first Saturday of each alternate month and the father shall bear the costs of that service.
The mother shall notify the father in writing as soon as she has contacted a supervised service provider to advise him of the date and time of the first visit and the cost that he will need to pay for the visit to occur.
The mother shall then make arrangements for the father to spend supervised time with the child each alternate month but if the father fails to take advantage of three (3) consecutive visits the Order for the father to spend supervised time with the child will be discharged.
In addition to the time the father spends time with the child in accordance with Order 3, the father shall spend time with the child at such times as agreed in writing between the mother and the father.
The father is at liberty to send cards, gifts, and letters to the child and the mother is at liberty to open all such items and make her own determination as to if they are provided to 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 Jonas and Mears

Details

AGLC: Jonas and Mears [2017] FCCA 2230
Case: [2017] FCCA 2230
Decision Date: 16 August 2017

CaseChat Overview and Summary

This case involved a dispute between a mother and father concerning parenting orders for their child, X. The matter was heard by Judge Terry. The court was required to determine the living arrangements for the child, the extent of parental responsibility, and the nature and frequency of the father's time with the child.

The court considered several legal issues, including the child's maturity, sex, and background, any views expressed by the child, the nature of the relationship between the child and each parent, and any family violence involving the child or a family member. The court also had to assess the capacity of each parent to provide for the child's needs and the likely effect of any changes in the child's circumstances. The father's history of family violence, including controlling and coercive behaviour and the existence of a final apprehended domestic violence order, were significant factors.

In reaching its decision, the court applied principles from the *Family Law Act 1975*, particularly section 60CC, which outlines considerations for determining the best interests of the child. The court found that the father's aggressive and unregulated behaviour had a deleterious impact on the child, despite the child's expressed desire to maintain contact. The court also noted the mother's difficulties in managing the child's behaviour and the significant stress she experienced. The court ultimately made orders that the child live with the mother and that the mother have sole parental responsibility. The father was granted supervised time with the child on specific dates, with provisions for the father to bear the costs of supervision. The father was also restrained from making contact with the child other than as permitted by the orders, and the mother retained the child's passport and was at liberty to travel internationally.

Orders

Orders of the court

The child X born (omitted) 2007 (“the child”) shall live with the mother.

The mother shall have sole parental responsibility for the child.

The father shall spend time with the child on first Saturday each alternate month commencing in October 2017 supervised by a service provider such as Rekonnect or Big Brown House.

The mother shall promptly contact a supervised service such as Rekonnect or Big Brown House and make an arrangement for the father to spend time with the child on first Saturday of each alternate month and the father shall bear the costs of that service.

The mother shall notify the father in writing as soon as she has contacted a supervised service provider to advise him of the date and time of the first visit and the cost that he will need to pay for the visit to occur.

The mother shall then make arrangements for the father to spend supervised time with the child each alternate month but if the father fails to take advantage of three (3) consecutive visits the Order for the father to spend supervised time with the child will be discharged.

In addition to the time the father spends time with the child in accordance with Order 3, the father shall spend time with the child at such times as agreed in writing between the mother and the father.

The father is at liberty to send cards, gifts, and letters to the child and the mother is at liberty to open all such items and make her own determination as to if they are provided to the child or not.

The mother shall ensure that the father is kept informed of the child’s residential address and all schools attended upon by her.

10.

The mother shall authorise the schools attended upon by the child to provide to the father at his own expense, copies of school reports and applications to purchase school photographs.

11.

The father shall not attend any school attended by the child for any purpose unless the mother provides her written consent for him to do so.

12.

Pursuant to s.68B of the Family Law Act 1975 the father is restrained from making or attempting to make any contact with the child other than in accordance with these Orders.

13.

The mother shall retain the passport and is at liberty to travel internationally with the child notwithstanding the consent of the father has not been obtained.

14.

The Independent Children’s Lawyer shall prior to ceasing to act in the matter meet with the child and explain to her the orders the court has made and if she considers it appropriate to give the child some information about why the orders have been made and the mother shall ensure she makes the child available to meet with the Independent Children’s Lawyer at a time convenient to the Independent Children’s Lawyer.

THE COURT NOTES THAT:

(A) The mother shall do her best to ensure that the child and the father’s other child A are able to spend time together.

(B) The mother is strongly urged to arrange for the child to attend counselling.

Background

Background to the litigation

I must consider the child’s maturity, sex and background. The mother told Dr L that X became quite explosive on occasions and threw tantrums and lost control. She said that she believed that this was due to her exposure to the father’s behaviour which was similar. Dr L said that attachment loss from not seeing the father could be contributing to the child’s behaviour as could the fact that she wasn’t seeing A as much as she would like but he also said as follows: As a result X has been exposed to the modelling of controlling and emotionally abusive behaviours and this is having an impact on her current behaviour. While I also suspect that the mother has a greater difficulty in managing her relationship with X than she acknowledges I think the primary influence on X has been her long-term exposure to such difficult behaviour by the father.[11][11] Dr L report paragraph 152 X may be missing the father and that may be having some impact on her behaviour but Dr L was of the view, and I consider it probable, that her exposure to seeing the father act out in a highly aggressive unregulated way has also had its impact on the way that she behaves. I must consider any family violence involving the child or a member of the child’s family. The mother described behaviour during the relationship which included yelling and screaming, the father beating her on the bottom after she slapped his face fearing that he was going to spit on her and near the time of separation grabbing and pushing her and she described an occasion when the father pushed her to try to get her phone. I consider that the mother was a witness of credit in relation to the father’s behaviour and I accept her evidence. The father has committed acts of family violence since the relationship ended. He has engaged in controlling and coercive behaviour in a variety of ways, including having explosive fits of temper, making derogatory comments and gestures to the mother in the presence of the child, invading her space or pacing up and down outside her home, subjecting her to verbal abuse via an email left on the child’s phone after he was disappointed at a court event and sending a lengthy diatribe to her parents and a very lengthy diatribe to her lawyer. I do not accept the father’s evidence that someone fabricated that part of the 13 May 2016 text message which refers to the mother and I am satisfied that the father has committed acts of family violence on a variety of occasions. I must consider whether there are any family violence orders in place and if so the implications of that. A final ADVO was made on 8 May 2016 and it is current until April 2018. I do not consider it necessary to make any further comment about that. I must consider whether it is preferable to make the order least likely to lead to further proceedings. The order least likely to lead to further proceedings is a no time order. It would be a severe outcome for X but it is the order which is least likely to lead to further proceedings.

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 or communicate with the child or to take part in making decisions about her. That is not a relevant consideration. Both parties have always wanted to be part of the child’s life. I must consider the financial support of the child. The mother is a (occupation omitted) who works at (employer omitted). She is exclusively supporting X financially. The father said that he worked casually as a (occupation omitted) but there was no evidence about his income or about his capacity to provide financial support for X and it appears that there is no child support assessment in place. I must consider the likely effect of any change in the child’s circumstances. This is the central issue in the case and I cannot fully consider it until I make findings about the remaining s.60CC(3) matters and the s.60CC(2) matters. One change proposed is that the child should commence spending unsupervised time with the father once a month, more if the father had his way, but certainly once a month if the Independent Children’s Lawyer’s orders prevail. The mother has been putting up with volatile, aggressive, rude and insulting behaviour by the father on and off since separation six years ago. He has denigrated her to the child and she has been forced to apply for an ADVO and twice forced to come to court about the matter, and I will have to take into account as part of a final decision the effect on her of making the various orders that are proposed. I must consider the capacity of each parent to provide for the needs of the child including her emotional and intellectual needs. The mother and X live in rented accommodation on the (omitted). X is in year 5 at (omitted) Public School. The mother is a (occupation omitted) in the (employer omitted) at (omitted). She does shift work and it is apparent from her conversation with Dr L that she enjoys her work. The mother has always done a good job caring for X in terms of arranging for her to attend preschool and school and do extra-curricular activities. She has the support of her parents, who I believe may be in court today, and also her friend Ms L who gave evidence in the case. The mother clearly has a good support network. The mother admitted to Dr L that she found it difficult to manage X’s behaviour at times when X became what she described as anxious and panicky and began acting out. There was a very serious incident in August 2016 which involved X holding a knife and the mother needing to call police and an ambulance. The mother did not reveal this incident to Dr L but I am not overly concerned about that because she was very frank with Dr L in general terms about the difficulty she had experienced with X. Dr L said as follows:Ms Jonas did identify that the major stressor acting on her as a parent was when her daughter became distressed, anxious and panicky. She said that she does worry how she can help X at such times. She said X is a badgerer and will nag her. One of the things that the mother has done is started smoking again after many years, it was about three years ago that she started smoking. She now uses her own time out to go out the back and have a cigarette as a means to de-stress from having to deal with X. What is clear from the mother’s comments is that there remain significant flash points in her relationship with X and the mother lacks some skill at the moment in settling X’s behaviour. There are likely multiple reasons why X is so distressed and undertaking the therapy that is currently planned to do so appears to be important in assisting in resolving that.[5][5] Experts Report paragraph 55

Ratio Decidendi

Legal Principle Established

The first of the additional considerations is any views of the child and the weight to be given to those views. X told Dr L that she would be sad if she did not see her father and that she liked the previous arrangement of alternate weekends. At trial the Independent Children’s Lawyer tendered a document headed “Statement of views and wishes of the child.” She reported that X said that she wanted to live with her mother and spend time with her father every second weekend overnight without supervision. The Independent Children’s Lawyer reported that X said she would be angry and disappointed if she only saw the father four times a year supervised and would lose focus at school. She said the same would be the case if she did not see him at all. She was asked about once a month and said she would prefer once a fortnight. Dr L identified a number of benefits to X from having a relationship with her father. He pointed out that she received some positive affection from him, got a sense of identification from seeing him and he was the conduit for her to see her sister A. He said as follows however about the weight that should be given to her views:X clearly wants to continue to have good levels of contact with her Dad. All other things being equal she would like to see a resumption of the alternate fortnightly contact, and there are multiple advantages to this which not only include her expanding her relationship with her father but also with her sister A. X does present as a somewhat parentified child who is aware of what’s going on and although she was defensive with me in the interview and clearly not wanting to say anything that would get her parents into trouble she is highly motivated to retain a relationship with her father, which she enjoys. She also gets a sense of identification with him, which is also important to her. In addition her father acts as a conduit for her to develop her relationship with A, which is highly important to X. However, X as yet remains young and has difficulties in foreseeing the consequences of her decisions. She cannot foresee how contact with her father, or exposure to the abrasive family communications that result has a deleterious impact on her and cause her anxiety. Despite this I feel that the strength of her desire to have contact with her father is something that does need to have some weight placed on it.[4][4] Experts report paragraph 152 I must consider the nature of the child’s relationship with each of her parents and any other person. X has a good relationship with her mother. Dr L observed them together and said that he felt they had a secure and warm attachment. X also has a good relationship with her maternal grandparents and with the mother’s friend Ms L. The mother said that X adored her father but had some ambivalence about him because of his behaviour. I will have to decide what I do with that comment later on. Dr L observed the father and X at the expert report interviews and said that they had a cheerful time with no problematic issues observed.