FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kubic & Waddington [2021] FedCFamC1F 264
File number(s): MLC10055 of 2014 Judgment of: MCEVOY J Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – CHILDREN – Where final parenting orders were made by consent in July 2016 – where the father recommenced proceedings in July 2017 – where both parties seek that the child live with them – where the father asserts the mother has sought to exclude him from the child’s life – where the mother asserts she facilitated the relationship between the child and father save that she had concerns about the child’s behaviour and could not ignore disclosures being made by the child – where the Independent Children’s Lawyer recommends the child continue living with the mother despite the mother having hampered the child’s relationship with the father and having refused to participate in therapeutic intervention – where it is found that the mother has attempted to prevent or curtail the father’s relationship with the child – where it is found that the maternal grandmother has sought to undermine the child’s relationship with the father – consideration of whether the child should be removed from the mother’s care – where it is found to be in the best interests of the child for the parties to have equal shared parental responsibility and for the child to remain living with the mother, go to school proximate to the mother’s home, and spend substantial and significant time with the father – where the mother is required to participate in reportable therapeutic counselling Legislation: Evidence Act 1995 (Cth) section 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 65DAB, 65DAC
Cases cited: Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) FLC 93-428
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
Jones & Dunkel (1959) 101 CLR 298
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Poisat & Poisat (2014) FLC 93-597
U & U (2002) 211 CLR 238Division: Division 1 First Instance Number of paragraphs: 89 Date of last submission/s: 31 May 2021 Date of hearing: 8-12 February 2021; 17-18 March 2021 Place: Melbourne Counsel for the Applicant: Ms Harris Solicitor for the Applicant: RT Legal Counsel for the Respondent: Mr Combes Solicitor for the Respondent: Trapski Family Law Counsel for the Independent Children’s Lawyer: Mr O’Connell Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC10055/2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KUBIC
Applicant
AND: MS WADDINGTON
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The father and the mother shall retain equal shared parental responsibility for the child X born … 2014 (“the child”).
2.The child shall live with the father as follows:
(a)during each…
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CaseChat Overview and Summary
This case, Kubic & Waddington, involved a dispute between the father and mother of a young child regarding parenting orders. The father, born in 1987, works in the transport industry and has another child from a previous relationship. The mother, born in 1985, also works in the transport industry and lives with the child and her parents. The parents separated in 2014 and divorced in 2017. The court had to decide whether the child should remain in the mother's primary care or if it was in the child's best interest to be removed from her care. The legal issues included whether protective mechanisms could be put in place to ensure the child's safety and whether the mother could foster the child's relationship with his father.
The court found that the mother's behaviour was concerning, but if protective mechanisms were put in place, it would not be in the child's best interests to remove him from her care. The court accepted the Independent Children's Lawyer's submissions and the family report writer's recommendations. However, the mother and her parents needed to work together to make the regime successful. If the mother failed to engage in therapeutic intervention or foster the child's relationship with his father, it may be necessary to remove the child from her care. The court believed the father was more truthful than the mother and accepted his submissions that he was generally more truthful than the mother. The mother was argumentative and unable to accept that there were aspects of her own behaviour that were problematic.
In conclusion, the court decided that the child would remain in the mother's primary care, but protective mechanisms would be put in place to ensure his safety. The mother and her parents needed to work together to foster the child's relationship with his father and for the mother to engage in therapeutic intervention. If they failed to do so, it may be necessary to remove the child from the mother's care. The court's decision was based on the best interests of the child and the need for protective mechanisms to be put in place. The court found that the father was more truthful than the mother and accepted his submissions. The mother's behaviour was concerning, but if protective mechanisms were put in place, it would not be in the child's best interests to remove him from her care.
The court found that the mother's behaviour was concerning, but if protective mechanisms were put in place, it would not be in the child's best interests to remove him from her care. The court accepted the Independent Children's Lawyer's submissions and the family report writer's recommendations. However, the mother and her parents needed to work together to make the regime successful. If the mother failed to engage in therapeutic intervention or foster the child's relationship with his father, it may be necessary to remove the child from her care. The court believed the father was more truthful than the mother and accepted his submissions that he was generally more truthful than the mother. The mother was argumentative and unable to accept that there were aspects of her own behaviour that were problematic.
In conclusion, the court decided that the child would remain in the mother's primary care, but protective mechanisms would be put in place to ensure his safety. The mother and her parents needed to work together to foster the child's relationship with his father and for the mother to engage in therapeutic intervention. If they failed to do so, it may be necessary to remove the child from the mother's care. The court's decision was based on the best interests of the child and the need for protective mechanisms to be put in place. The court found that the father was more truthful than the mother and accepted his submissions. The mother's behaviour was concerning, but if protective mechanisms were put in place, it would not be in the child's best interests to remove him from her care.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow I have accepted the ICL’s submissions and, essentially, the orders which she has proposed. They are consistent with the family report writer’s recommendations and notwithstanding my significant concerns about the mother’s behaviour to date, I agree that if some protective mechanisms are put in place it would not be in the child’s best interests for him to be removed from the mother’s primary care. There will, accordingly, be orders broadly in the terms proposed by the ICL. Plainly, however, the mother and her parents need to make this regime work. If they are unable to foster the child’s relationship with his father, and if the mother does not undertake therapeutic intervention to address her lack of understanding of the importance of the child’s relationship with his father, it may be necessary for the child to be removed from the mother’s primary care.BACKGROUND The father was born in Australia in 1987 and is 34 years old. He works in the transport industry. At the time of the trial the father lived in the west of Melbourne. The father has a younger child with another woman. He is apparently no longer in a relationship with this woman. This child was born in 2018 and is almost four years old. The mother was born in Australia in 1985 and is almost 36 years old. She works part-time, also in the transport industry. The mother and child live with the maternal grandparents in two separate houses on the one property in the outer north east of Melbourne. The mother has been diagnosed with an adjustment disorder, with anxiety. The parties met at their workplace in 2007. They apparently began a romantic relationship in or about 2013, commenced cohabitation in January 2014, and married mid-2014. The parties separated on 2 September 2014, shortly prior to the birth of the child. The mother says they divorced on 11 April 2017 although the father seems to think this happened in 2016. Nothing turns on this disagreement. MATERIAL RELIED ON The father relied upon the following documents:(a)Affidavit of Dr E filed 12 February 2019; (b)orders of 30 April 2020; (c)his affidavit filed 18 December 2020;(d)Affidavit of Ms O (“the paternal grandmother”) filed 18 December 2020;(e)his affidavit filed 29 January 2021; (f)Affidavit of Ms D, (“the family report writer”) filed 1 February 2021; (g)outline of case filed 3 February 2021; (h)written submissions dated 31 May 2021; and (i)documents tendered at the trial. The mother relied upon the following documents: (a)psychiatric assessments of the parties by Dr E filed 27 January 2015, 7 December 2015, 13 July 2016 and 12 February 2019;(a)Family Reports prepared by the family report writer dated 15 July 2016 in previous proceedings (unfiled) and of 14 October 2015 (filed 21 October 2015); (b)Affidavit of Dr H filed 5 September 2017; (c)Affidavit of Dr M filed 5 April 2019; (d)Amended Response to Initiating Application filed 22 January 2021; (e)her trial affidavit filed 22 January 2021 and accompanying annexures; (f)Affidavit of the family report writer filed 1 February 2021; (g)written submissions dated 30 April 2021; (h)documents tendered at trial; and(i)Affidavits of the father, particularly paragraphs 11 to 15 of the father’s affidavit filed 15 June 2016 and his affidavit filed 10 November 2014 at paragraph 12(b).
Evidence
Evidence Before The Court
It should be observed that pursuant to s 140(1) of the Evidence Act 1995 (Cth) the standard of proof that is to be applied is the balance of probabilities. Section 140(2) provides that in applying that standard the Court must have regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.The Lay Evidence The father gave evidence and was cross examined over the first two days of the trial, and the paternal grandmother also gave evidence and was cross examined. The mother gave evidence and was cross examined on the afternoon of day two of the trial, continuing until day six. It should be said at the outset that in the course of the parties giving their evidence I became concerned about their preparedness to tell the truth. Being generous one might say that they both saw things from their own perspectives, and lacked insight into how particular actions or events might have been perceived by the other. Both had a tendency to answer questions with an eye to what they thought would better suit their case. On balance however I accept the father’s submissions that generally he impressed as the more truthful witness. He was more prepared than the mother to make admissions against interest and to concede that he could have done things differently, or not at all. The mother was a difficult witness. She had a tendency to parry particular questions and try to answer different questions, or to be non-responsive. Her cross examination took longer than it should have done for these reasons. On several occasions it was necessary for me to direct her to answer questions that were being put. The mother was frequently argumentative and she seemed unable to accept that there were aspects of her own behaviour, particularly surrounding her efforts to minimise the significance of the father in the child’s life and her failure to engage appropriately with family therapy, which were highly problematic. Very frequently the mother’s substantive answers appeared to be calibrated to assist her case. It must also be observed, however, that a good part of the parties’ evidence was more in the nature of largely irrelevant background to their unfortunate relationship than expositive of critically relevant disputes about factual matters which must be resolved one way or the other in order to determine what parenting orders are in the best interests of the child. This is particularly so, in my assessment, of the evidence of the competing allegations of family violence and abuse up to April 2016 and its asserted influence on the mother as summarised on pages 5-15 of her closing submissions and in some detail by the father in part 5.1 and 5.2 of his closing submissions. The mother accepts as much, conceding in her closing submissions that the relevance of the alleged family violence is not that the father is a risk to the child but that it was not unreasonable for her to be hyper-vigilant and protective in the circumstances. As will become apparent, I entertain no concerns whatsoever that that father is a risk to the child.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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