LADNER & LADNER

[2019] FCCA 3591

FEDERAL CIRCUIT COURT OF AUSTRALIA

LADNER & LADNER [2019] FCCA 3591

Catchwords:
FAMILY LAW – Parenting – findings of family violence – unacceptable risk of harm considerations - no time ordered.

Legislation:

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

Cases cited:

Goode & Goode (2007) 36 Fam LR 422

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MS LADNER

Respondent: MR LADNER

File Number: PAC 1805 of 2017

Judgment of: Judge Obradovic

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Parramatta

Delivered on: 13 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Wong

Solicitors for the Applicant: Amanda Little & Associates

Counsel for the Respondent: Mr Cairns

Solicitors for the Respondent: Bassan Lawyers & Associates

ORDERS

1. All prior parenting orders with respect to the children X born … 2009 and Y born … 2010 (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The children shall spend no time with the father.

5. Pursuant to s.68B of the Family Law Act1975 the father is restrained by injunction from:

   (a)Approaching the mother or the children in any way;

   (b)Intimidating, harassing or verbally abusing the mother or the children; and

   (c)Denigrating the mother to the children or in front of the children or permitting or allowing any third party from doing so.

6. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Ladner & Ladner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1805 of 2017

MS LADNER

Applicant

And

MR LADNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting orders in respect of the children X born … 2009 and Y born … 2010.

2. The applicant in these proceedings is the mother, Ms Ladner, and the respondent is the father, Mr Ladner.

3. The proceedings were commenced by the mother filing an Initiating Application on 19 April 2017 seeking both parenting and property orders.

4. The parties resolved their property dispute by way of consent orders made by this Court on 8 May 2018.

5. The mother seeks orders for sole parental responsibility for the children, for the children to live with her and that the children spend no time with the father.

6. The father, in his Response filed 5 July 2017 asks the Court to make orders for the parents to have equal shared parental responsibility and that he spend time with the children each alternate weekend and during the school holidays as well as on special occasions such as Christmas.

7. On 2 August 2018 the Court made trial directions to ready the matter for final hearing and the matter was adjourned for call over and possible allocation of a hearing date on 30 November 2018.

8. Both parties complied with the filing directions made by the Court on 2 August 2018.

9. On 22 November 2018 the Court made orders in Chambers vacating the listing of the matter on 30 November 2018 and the parties were advised by email that the matter would be listed for directions or final hearing on a date to be advised in 2019.

10. On 30 October 2018 an Application in a Case was filed by Ms A, the paternal grandmother seeking to be joined to the proceedings. This application was provided with a first return date of 18 February 2019 by the Registry at the time of filing.

11. On 18 February 2019, being the first return date of the Application in a Case filed by the paternal grandmother, there was no appearance by or for either the father or the paternal grandmother. Accordingly, orders were made dismissing that application and listing the matter for final undefended hearing on 22 May 2019, as a result of the non-appearance by the respondent father, his mother or the solicitor acting for the father.

12. On 22 May 2019 the father, his solicitor and Counsel appeared. Counsel was briefed for the purpose of seeking an adjournment only and was not in a position to proceed with a defended hearing. Counsel on behalf of the father sought that the undefended hearing be vacated and the matter be adjourned to another date to allow the father to be represented by Counsel who had appeared for the father on previous occasions the matter was before the Court.

13. The Court proceeded to hear the matter on a final basis on 22 May 2019 on the material filed in compliance with the Court’s trial directions made on 2 August 2018 noting that during Counsel’s submissions for the adjournment application the father said “this is a joke, the more time we’re here the more time I’m away from my kids”. Counsel for the father was excused from attendance at the hearing.

14. The father remained represented by his solicitor during the final hearing, which proceeded on a defended basis with the Court granting leave to the father to rely on his material previously filed and a further affidavit which was filed in Court.

15. These are the Reasons for Judgment in relation to that hearing.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect  children from harm than to the benefit to the children of having a meaningful relationship with both of their parents

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

10. The Full Court in Goode v Goode[7] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[8]  affirmed the legislative pathway.

Assertions and Findings

[7] (2007) 36 Fam LR 422, (2006) FLC 93-286

[8] [2010] HCA 4

Short Chronology

1. The father was born on … 1987.

2. The mother was born on … 1987.

3. The parties commenced dating in … 2005.

4. The parties were married on … 2009. The mother remained living with her parents following their marriage.

5. Their first child X was born on … 2009.

6. The parties’ second child Y was born on … 2010.

7. The parties purchased a property at B Street, Suburb C on … 2011 and commenced cohabitation at this time.

8. The parties separated in September 2014.

Evidence in the proceedings

1. The parties both relied on affidavits which had been filed pursuant to directions of the Court, as well as affidavits in respect of which leave had been provided. Only the parties gave evidence.

2. The mother was not required for cross examination at the final hearing.

3. The father was cross examined at final hearing.

The mother

1. The mother and father commenced their relationship during high school and were married on … 2009. Despite being married, the parties lived separately at the homes of their respective parents’ until 2011 when the parties purchased the former matrimonial home where the mother and children continue to reside.  

2. Following the births of the children the father would attend the mother’s home to spend time with her and the child/ren and would then return to his place of residence, however the time was sporadic.

3. Prior to X’s birth the mother was working as health care worker at Employer G and continued to study and completed her degree when X was six months old. The mother again commenced working as a health care worker until prior to the birth of Y. In … 2010 the mother registered her degree and commenced working as a health care worker on a full time basis.

4. Between May 2011 and early 2012 the father was needed to care for the children during times that the mother was working night shift. Prior to the mother leaving for work she would ensure that all household duties were attended to and that the children had been fed, bathed and put to bed before the father arrived home.

5. On occasions the father did not return home from work to care for the children requiring the mother to call in sick to work or to make arrangements with her parents to care for the children at their home.

6. The mother has always been the primary care giver to the children with the significant assistance and support from her family which allowed the mother to financially provide for the children.

7. The mother began to notice a shift in the father’s behaviour in early 2012 stating that when he would arrive home he was often drug affected and at other times when he was due to care for the children whilst the mother went to work he was uncontactable.

8. By 2014 the mother says that their relationship had significantly deteriorated.

Family Violence

1. The family violence in this matter is significant. The mother’s evidence with respect to family violence perpetrated by the father towards the mother and the children is very detailed.

2. A summary of the family violence perpetrated by the father as described by the mother in her affidavit filed 2 November 2018 is as follows:

   a)In 2011 the father choked the mother against a wall. An Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother a period of two years. The parties continued to live with each other following this;

   b)The father has spat in the mother’s face, thrown food at her and called her degrading names in front of the children;

   c)In August 2012 the father dislocated X’s arm. The father denies having taken the child to see a doctor about this however Annexure ‘D’ to the mother’s affidavit attaches a discharge summary from Suburb D Hospital dated 23 August 2012 which says that the child was brought to the hospital by his father;

   d)In 2013 the father repeatedly punched a family portrait hanging in the home in the presence of the children;

   e)The father has told the children to “shut the fuck up”, “fuck off” and told them “I’ve fucking had enough of this”;

   f)In … 2014 in Country H the father refused to leave the mother’s hotel room where she and the children were staying. The father grabbed the mother’s phone and threw it down the stairs, he then grabbed the mother by her right arm and repeatedly punched the mother in the head as he tried to throw her down the stairs;

   g)The father has pressed the mother’s face against walls and the ground and has thrown her to the ground in the presence of the children;

   h)On the mother’s birthday in 2014 the father threw X’s bowl of porridge at the mother’s face, spat at her and then left the family home;

   i)The father cut holes in the roof of the family home and placed surveillance cameras;

   j)On 18 August 2015 the father again threw food in the mother’s face in the presence of the children whilst eating breakfast and upon leaving the home pulled his penis out and began urinating on the floor and said words to the effect of “fucking have this”;

   k)In approximately 2015 the father was head barging the mother in the presence of the children when the child Y stood in front of the mother to protect her. The father then threw a knife at the child’s head;

   l)In August 2015 the father followed the mother and the children whilst they were driving home where he repeatedly tried to ram the mother’s vehicle off the road;

   m)The father has waited in the car park of the mother’s workplace to become verbally abusive towards her;

   n)The father threw a mobile phone at the mother’s head whilst she and the children were asleep in bed;

   o)On numerous occasions the father would enter the home through the window or locked doors whilst the mother and children were asleep, he would pick the mother up and take her to another bedroom and perform sexual acts despite the mother telling him to “stop” or saying “no”. The father would then leave the home.

3. The mother has made many reports, calls and statements to police for some of the above instances of family violence and at other times has been too frightened for the safety of herself and her children to do so. The Court does not criticise the mother for this.

4. In or about late 2014 or 2015 the father removed the children from the mother’s home whilst she was in the shower and took the children to Town E Caravan Park on the Region F of New South Wales with the paternal grandmother. After two days of attempting to contact the father he finally told the mother where he and the children were.

5. The mother left with the children the following day.

The father

1. At the time of swearing his affidavit on 29 October 2018 the father was incarcerated, being bail refused on 19 October 2018 for offences relating to impersonating a police officer, possessing prohibited weapons and possession of a prohibited drug.

2. The father admits to grabbing the mother by the throat in 2012 and pushing her down to the floor however states that this was in self-defence as the mother had punched him in the face whilst he was holding X and she “kept trying to run into me a few times”. In a later part of the father’s affidavit he attests to holding Y during this event.

3. Apart from the above incident and an admission by the father that he punched the family portrait after finding out that the mother was having an affair the father denies all other allegations made by the mother in her evidence.

4. During the hearing, the father appeared agitated, he was uncooperative and evasive in his answers. For example, when asked by Counsel for the mother about his arrest for impersonating a police office, the father answered “none of your business… it’s got nothing to do with this case… don’t bring it up, nothing to do with this brother.”

5. When he was asked about his illicit drug use, the father responded with “Don’t try to dirty my image.” The father conceded that he used methamphetamines in the past, but that he has overcome his addiction. He said “I had a problem. I have overcome my problem.” He then conceded to using illicit drugs once at or around the time of his father’s death (2017), but that at this point in time he no longer had an addiction. The father has never had any treatment or counselling for his drug addiction.

6. During cross-examination the father was asked about why he hadn’t done any drug testing, which he indicated in his affidavit that he was willing to do. He said “I haven’t been in a situation to do that.”

7. The father also gave evidence that “Drugs have never been an issue in this case… never been a problem.” This is despite the mother clearly raising on her material the father’s drug use and aggressive behaviour consequent upon the drug use.

8. The father has been named as a defendant to a number of orders for the protection of the mother and the children, and he has been convicted of breaching such orders. In November 2015 an apprehended violence order was made for the protection of the mother and the children. In November 2016 the order was extended to November 2018.

9. The father has been convicted of breaching protection orders in June 2016 and February 2017. In November 2018, the father received a s.32 Mental Health Act (NSW) order in respect of further charges of breach of AVO.

10. The maternal grandmother has been charged with possession of marijuana. The father says that these drugs were for his disabled brother, who lives with the maternal grandmother. The father also lives in the same household, although he plans to get his own place. 

11. The father’s evidence in chief was breathtakingly inadequate in terms of disclosing relevant matters to the Court, such as for example, the fact that his mother had been charged with possession of marijuana.

12. Where the two are in conflict, the Court accepts the evidence of the mother over that of the father. The Court finds that the father was not a truthful witness.

Relevant Consideration

1. The Court accepts the evidence of the mother in respect of family violence and finds on the balance of probabilities that the matters which the mother deposed to and as summarised in paragraphs 46 to 49 above, occurred. The Court finds that the father is the perpetrator of serious family violence against the mother and the children, and that the children have been exposed to family violence thus needing to be protected from physical and psychological harm.

2. Furthermore, the Court accepts the evidence of the mother that the father, during the parties’ relationship and post separation, was at times drug affected including during some of his interactions with the mother and the children. At these times, the children were placed at an unacceptable risk of harm by the father through his drug use and the effect this had on his capacity to parent the children and his general capacity to make considered decisions and act in a considered manner.

3. The Court has previously made orders for time between the father and the children to be supervised. Such time was terminated by the contact centre and ultimately the visits were cancelled in their entirety. The reason for this was the way the children reacted to spending time with the father.

1. The children have expressed clear wishes not to see the father. They are of an age where those wishes must be given some weight, particularly in light of the findings of family violence which the Court has made. The evidence in these proceedings is that the children have been affected by the family violence they have witnessed and that they are traumatised. Both children have exhibited behaviours which the mother has sought professional assistance for, and with that assistance the children have been able to feel less anxious and more confident.

2. The evidence does not support any finding of a meaningful relationship between the children and the father at present, or that such a meaningful relationship may be probable for the children in the future given the father’s behaviours and attitude.

3. The risk to the children of harm, as a result of further exposure to family violence and abuse is unacceptable. Whilst it is the Court’s task to consider means in which the risks can be ameliorated, in the circumstances of this case, the only way the risks can be ameliorated is through an order for no time. Supervised time has been tried and it has failed. It is not in the children’s best interest that they go through similar trauma in trying to have a relationship with their father, which may or may not ultimately end up being beneficial to them.

4. The mother has at all material times attempted to facilitate a relationship between the children and the father, and she has at all relevant times recognised the importance of that relationship to the children. She herself is significantly frightened of the father, and notwithstanding her own fears, she has encouraged the children to spend time with the father pursuant to orders for supervised time.

5. The father must accept responsibility for his own actions. He has not yet done so, and indeed as at final hearing, he still did not understand or did not want to understand, that many matters which he did not consider relevant were and are relevant to the determination of best interests of his children.

6. The mother has been the person primarily responsible for providing care for the children, not only post separation but also during the parties’ relationship. She has been able to provide for the children’s needs and has at all relevant times acted appropriately and protectively towards the children. The children continue to be supported by her.

7. Given the findings of family violence, the presumption of equal shared parental responsibility has been rebutted. In all of the circumstances, it is appropriate and in the children’s best interest for the mother to have sole parental responsibility. The evidence simply does not support any finding that the parents can co-operate or make joint decisions.

8. On the basis of the findings of family violence, and the significant and consistent history of the father’s poor behaviour, it is appropriate to make a personal protection order for the mother and the children. This is so given the history of breaches of similar orders by the father in the past and his significant disregard for the law. The father is unable to control himself, as has been demonstrated by his behaviour in Court.

9. For all of these reasons, orders will be made as set out at the forefront of these reasons for judgment.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 13 December 2019