LAMPING & DELAND

[2020] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMPING & DELAND [2020] FCCA 2721

Catchwords:
FAMILY LAW – Final parenting – limited issues – parental responsibility – children’s time with father – orders made for children to spend time with father in accordance with their wishes.  

Legislation:

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

Cases cited:

Goode & Goode (2007) 36 Fam LR 422

Keats & Keats [2016] FamCAFC 156

M & M [1988] HCA 68

Marsden & Winch (No.3) [2007] FamCA 1364

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Napier & Hepburn (2006) FLC 93 – 303

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR LAMPING

Respondent: MS DELAND

File Number: PAC 2040 of 2011

Judgment of: Judge Obradovic

Hearing dates: 2, 3, 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Parramatta

Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicant: Ms Friedlander

Solicitors for the Applicant: Gonzalez & Co

Counsel for the Respondent: Ms Saw

Solicitors for the Respondent:	Mahony Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitors for the Independent Children's Lawyer:	Legal Aid New South Wales

ORDERS

1. All prior parenting orders with respect to the children X born 2003 and Y born 2007 are discharged.

2. That the mother shall have sole parental responsibility for the children X born 2003 and Y born 2007.

3. That the children shall live with the mother.

4. That the children shall spend time with the father in accordance with their wishes.

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2040 of 2011

MR LAMPING

Applicant

And

MS DELAND

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings relating to two children, X born 2003 and Y born 2007.

2. The parties to the proceedings are the applicant father, Mr Lamping and the respondent mother, Ms Deland.

3. The primary issues for determination are:

   a)Parental responsibility; and

   b)What time, if any, the child Y should spend with the father.

4. The father is seeking an order for the parents to have equal shared parental responsibility while the mother is seeking an order that she have sole parental responsibility.

5. The parents agree that X should spend time with the father in accordance with her wishes. She was after all 16 years old at the time of hearing, and has recently turned 17.

6. The father says that Y should spend time with him each alternate weekend from after school on Friday to before school on Monday and for half of the school holidays together with time on special occasions.

7. The mother says that Y should spend time with and communicate with the father in accordance with his own wishes.

8. The mother also asks the Court to make findings of family violence.

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 the children’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 child 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]

Relevant Facts and Evidence of the Parties

1. The mother was born 1970 and is currently 49 years of age.

2. The father was born 1973 and is currently 47 years of age.

3. When the parties commenced living together is not an agreed fact. The father submits cohabitation commenced in 1998 whilst the mother says it commenced in 2000.

4. The parties’ first child, X was born 2003 and is currently 17 years of age.

5. The parties’ second child, Y was born 2007 and is currently 13 years of age.

6. The parties do not agree on the date of separation. The father asserts the parties separated in 2009 however the mother asserts separation occurred in 2011.

7. On 13 May 2011 consent orders were made by the Family Court of Australia at Parramatta for the parties to have equal shared parental responsibility for the children, the children to live with the mother and for the children to spend time with the father in week one from Friday evening to Saturday evening and in week two from Friday evening to Sunday evening and for time over the school holidays and on special occasions.

8. Both children began working with a school counsellor in 2013.

9. An incident occurred on 16 January 2014 where the mother asserts that the father held a knife to her throat and said to her “if I ever see you with another man you dirty cunt I will slit your throat”. The mother says that the father also threw a chair at her which hit her in the head, punched the house and threw a coffee cup at the back fence all of which occurred whilst the children were home and resulted in the child X calling the police.

10. On 17 January 2014 a provisional Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of the mother from the father with a return date before Town A Local Court on 3 February 2014.

11. In February 2014 the Local Court at Town A made an interim ADVO for the protection of the mother and the children from the father.

12. On 8 March 2014 the mother says that the father made a throat slitting gesture at changeover.

13. On 31 March 2014 the mother withdrew assault charges resulting in the ADVO being made by consent.

14. On 5 April 2014 the mother asserts that the father said to the mother at changeover “if I can’t have a family then neither can you”.

15. On 11 April 2014 the mother alleges that the father yelled to her at changeover words to the following effect “Do you need a noose yet? Are you ready to kill yourself?”

16. On 21 April 2014 again at changeover the mother alleges that the father yells “Get my fucking daughter in this car or I will get out of the car and shoot that cunt in the head” and further “I hope you said goodbye because that’s the last time you’ll say goodbye to these kids”.

17. On 30 April 2014 the mother found “a compromising photo of me with another female” placed under the windscreen wipers of her car and alleges that the father was responsible for this. The father in his cross examination denied he was responsible.

18. Also on 30 April 2014 the mother says that the father threatened to kill her in a telephone call stating that the father said “that cunt is living in that house with my children you’ve got 24 hours to get that cunt out of that house or there is going to be bloodshed” and “you have 24 hours to live. I am suicidal and I’m not going alone”. The mother reported this to the police.

19. The mother commenced family law proceeding on 13 May 2014 with the Federal Circuit Court of Australia in Parramatta and on 11 September 2014 the Court made final consent orders for the children to live with the mother and to spend defined time with the father.

20. On 28 July 2014 the Local Court at Town B made a final ADVO for the protection of the mother and the children from the father for a period of 12 months.

21. The mother says that X reported to her several times that the father laid on top of her in bed when she was spending time with him and that on 29 January 2015 X reported to the mother that she had told her friend that she was scared that her father would kill her in her sleep.

22. The mother alleged that on 26 February 2015 the father had hacked into her phone and changed the name of her then partner to “Entrée is served”.

23. The children make several complaints to the mother over the course of 2015 that the father yells, screams, scares them, smashes things around the house and that the father had threatened to kill X.

24. On 27 June 2015 the mother says that the screen door to her home was kicked in and a death threat was left. The mother reported this to the police.

25. On 29 June 2015 the mother says that 10 large ice bricks were thrown at her from the back of her house from an adjoining park.

26. On 17 September 2015 the mother alleges that her screen door was again kicked in and a death threat was left. The mother again reported this to the police.

27. In October 2015 the mother was admitted to Hospital C and was diagnosed with Post Traumatic Stress Disorder.

28. The mother was again admitted to Hospital C in January 2016 where she remained for four weeks.

29. In August 2016 X was diagnosed with depression, anxiety and obsessive compulsive disorder by Dr D at Town E and was referred to the health service G at Hospital F in Town H. X’s time with the father reduced following these diagnoses.

30. In September 2016 Y was diagnosed with Attention Deficit Disorder and Oppositional Defiance Disorder and was prescribed Ritalin. The father asserts that the first time the mother addressed this with him was in an email dated 7 July 2018.

31. The father denies most, if not all, of the allegations the mother makes against him regarding family violence and says that he became very concerned about the mother’s mental health and that she was not being a good “mental health role model” for the children following information supplied by Hospital C in answer to a Subpoena which revealed the mother had been admitted to this service for her mental health.

32. The father filed an Initiating Application at Town I Local Court on 25 May 2017 seeking orders for the children to live with him and that the mother’s time with the children be subject to some mental health evidence that she was capable of caring for the children.

33. The matter was transferred to the Federal Circuit Court of Australia on 3 July 2017 and an Independent Children’s Lawyer was appointed.

34. The last time the father spent time with X was in March 2018 and the last time he spent with Y was in June 2018.

35. The father is in a relationship with Ms J who gave evidence at the hearing in support of the father’s application.

36. Despite orders made by this Court on 11 September 2014 for the parents to have equal shared parental responsibility for the children, the father’s evidence suggests that the mother has made all parenting decisions relating to the children. For example, the father says that he found out about Y attending a school counsellor for his “mental health concerns” by finding a copy of the counsellors report in Y’s school bag. The father says it was this incident which led him to file his current application at Town I Local Court.

37. The father says that Y’s attitude toward spending time with him dramatically changed in approximately May 2018 when he began receiving text messages from Y stating that he did not wish to spend time with his father. The father says that this was “strange as Y had enjoyed his time with me throughout the years and following our time recommencing he was happy”.

38. The mother’s evidence is that Y became anxious leading up to his visits with his father and requested that they stop.

39. The father says that he has “concerns that Ms Deland has been telling X things about matters that should not be discussed with the children and as a result X is reluctant to spend time with me”.

40. The parties and the children, as a result of Court orders dated 4 May 2018, had attended several family therapy sessions with Dr K however, this process has ceased due to the children’s lack of engagement in the process.

Expert Evidence

1. In evidence before the Court is an expert’s report of Dr L dated 3 June 2019. Dr L was also cross examined at the final hearing by Counsel for both parties and the Independent Children’s Lawyer.

2. Dr L’s evidence was measured and thoughtful.  She was ultimately of the opinion that:

   a)The mother genuinely believed that the incidents of family violence which she alleges occurred;

   b)The mother would not be able to assist the children in having positive contact with the father;

   c)Given the mother’s fears of the father, it would be very difficult for her to speak to Y about any positive interactions with the father;

   d)The children’s relationship with the mother was a significant protective factor for them;

   e)Some of X’s worries about the father were not based on her own experiences but rather the mother’s stated experiences;

   f)Y’s opinion about the father was influenced heavily by the mother and X, and that given their highly negative views of the father it would be hard for Y to have any other opinion;

   g)Y continues to see the father in a very negative light, even after family therapy;

   h)If there was an order for Y to spend time with the father, it is unlikely that he would go and if he did, it is unclear whether he would be able to have any positive interaction with the father;

   i)Without intensive therapeutic intervention it is highly unlikely that Y would spend any time with the father and even with therapeutic intervention it is unlikely that time between Y and the father would be successful; and

   j)If time between Y and the father was ordered, it would be highly stressful for Y and it would negatively impact on X and the mother.

Parental Responsibility

1. The Court finds that the presumption of equal shared parental responsibility has been rebutted on the evidence.

2. The relationship between the parents is simply not conducive of any real or meaningful co-operation in respect of the children’s long term welfare and needs. The mother’s views of the father are so negative, and indeed the father’s view of the mother[7], that it would be near impossible for the parents to jointly make decisions regarding long-term issues for their children.

   [7] In particular the father’s (stated) belief that the mother has so negatively influenced the children that they now no longer have a relationship with the father, and that the mother has significant mental health issues which impact upon her decision making and general parenting capacity

3. The Court will make an order for the mother to have sole parental responsibility. Given that the children will be living with the mother, this is the only order with respect to parental responsibility which will see their needs met.

Court’s Determination

1. While the legislation neatly sets out the various matters the Court is to take into account in determining a child’s best interest, it is usually impossible to neatly fit into the various individual considerations the Court’s findings. The considerations themselves overlap, and matters which are relevant in respect of one matter may also be relevant in respect of one or more other matters. In the present circumstances, not only do the considerations overlap significantly, but some are significantly weightier than others.

Children’s Views and Relationships with the Parents

1. X showed genuine distress at the idea of seeing the father during the interviews for the expert’s report and looked very uncomfortable during the observations sessions. X believes that the father is not a good parent and she has very negative views about him.

2. Y also has a negative impression of the father. While during the interviews for the expert’s report there was some minimal interaction with the father, Y did not reciprocate or initiate contact with the father. While he did not pull away from the father, he also did not respond to the father’s attempts at engaging him. Y has expressed a strong wish not to spend any time with the father.

3. The parents and the children have engaged in family therapy with Dr K, which did not produce a positive outcome for the father and the children.

4. Y’s views of the father are influenced by those of X and the mother.

5. The mother has been the children’s primary attachment figure since birth and they rely on her to be consistent and caring adult in their lives. The mother provides a safe place for the children to bring their intense emotions and be comforted.

6. The children are, at best, uncertain about whether the father acts in their best interest. The children’s ongoing separation from the father is not ideal and may strengthen their negative views about him.

Family Violence

1. Findings about family violence, and in particular about specific incidents of family violence are matters which need to be proven to the requisite standard, namely the balance of probabilities. However, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   a)The nature of the cause of action or defence;

   b)The nature of the subject-matter of the proceedings; and

   c)The gravity of the matters alleged.[8]

   [8] See for example: Marsden & Winch (No.3) [2007] FamCA 1364

2. The mother presses the Court to make findings of family violence, although in submissions, the Court was not taken to specific allegations nor the evidence in support of those allegations.

3. These Reasons for Judgment will be available to the public at large, and it is likely that at some point in the future, the children who are the subject of these proceedings will either willingly or otherwise, read the Court’s determination as to what is in their best interest.

1. Findings of violence once made, can come down between a parent and child like an iron gate.[9]

   [9] See Napier & Hepburn (2006) FLC 93-303 at [114] but said in the context of findings of unacceptable risk of harm

2. Dr L opines:

   If the violence occurred as alleged then [the father]… is minimising his propensity for violence and is not taking responsibility for his behaviour. If, on the other hand, [the mother’s] … anxiety has led to an exaggeration of the events and subsequent help-seeking for herself and her children this has isolated them from their father. It implies that [the mother’s] … own irrational fears about [the father]… have been communicated to the children and led to the breakdown of their relationship.

3. While the opinion of Dr L may be valid, for the purposes of the Court’s determination, it is not necessary to make any findings of family violence. The High Court has said the following in respect of allegations of sexual abuse, which principles are also no doubt applicable to allegations of family violence:

   [19]… The fact that the proceedings involve an allegation that the child has been sexually abused by a parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps decisive, impact on the resolution of that issue.[10]

   …

   [21] … the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interest of the child… 

   [10] M & M [1988] HCA 68

4. The evidence in the proceedings is overwhelmingly in favour of the orders sought in the mother’s case. While findings may be important to the parents personally, they are neither important nor decisive for the purposes of determining the narrow, but very important, issues before the Court.

Other Relevant Matters

1. The reality for these children is that their parents have in the past come to various agreements about the time they were to spend with the father. Those agreements have also made themselves into Court orders, which have not worked for the children.

2. At the time of final hearing, the children’s relationship with the father was so fractured that the expert opinion was that it would be detrimental to the children for there to be orders for time between Y and the father.

3. The parents agree that X should spend time with the father in accordance with her wishes. Her attitude is that she does not want to see the father, therefore in reality, an order that she spend time with the father in accordance with her wishes will mean, in at least the short term, that she will not spend any time with the father. The expert has explained why it is important that X not be put in a situation where she is forced to spend time with the father.

4. There is no evidence which would support an order for Y to spend regular time with the father. Indeed, the evidence is that if there was such an order it would be stressful for Y and time would not occur. This would in turn no doubt create further conflict between the parties and negatively impact the parenting capacity of the mother in particular.

Conclusion

1. For all of these reasons orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 2 October 2020