FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Larsson & Larsson [2021] FedCFamC1F 196
File number(s): BRC 2183 of 2020 Judgment of: CAREW J Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father perpetrated acts of family violence – Where the father denies allegations – Where limited evidence to substantiate the allegations made by the mother – Where the behaviour and statements attributed to the father do not fall within the definition of family violence save for one incident – Evidence to establish family violence – Onus of proof.
FAMILY LAW – CHILDREN – unacceptable risk of sexual, physical and emotional harm – Where the mother alleges the father poses an unacceptable risk of harm to the children due to allegations of sexual abuse, emotional abuse and exposure to family violence – Where the father denies that he poses any risk of harm to the children – Where it is found the father does not pose an unacceptable risk of harm to the children.
Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Amador & Amador 43 FamLR 268
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw v Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
N and S and the Separate Representative (1996) FLC 92-655
Russell & Close [1993] FamCA 62
Saska & Radavich [2016] FamCAFC 179
Number of paragraphs: 164 Date of hearing: 7 – 10 June 2021 and 30 September 2021 – 1 October 2021 Place: Brisbane Counsel for the Applicant: Mr Shoebridge Solicitor for the Applicant: Hede Byrne & Hall Counsel for the Respondent: Ms Cullen from 7 – 10 June 2021;
Dr Sayers from 30 September 2021 – 1 October 2021Solicitor for the Respondent: Norris Law Counsel for the Independent Children’s Lawyer: Mr Taylor
Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 2183 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
BETWEEN: MR LARSSON
Applicant
AND: MS LARSSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
CAREW J
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting Orders and Parenting Plans be discharged.
2.The father and the mother are to have equal shared parental responsibility for major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children X (born … 2012), Y (born … 2014), and Z (born … 2015).
3.The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a…
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- AGLC
- Larsson & Larsson [2021] FedCFamC1F 196
- Case
- [2021] FedCFamC1F 196
- Decision Date
CaseChat Overview and Summary
The case of Larsson & Larsson involved a dispute between the parents regarding the care and custody of their three children, aged 8, 7, and 6. The father, who was employed in transport and often away from home, had significant absences from the family. The mother alleged that the father emotionally abused the children by playing favourites, causing them pain, and using derogatory names. The father denied these allegations, acknowledging only that he may not have been as emotionally available to the children as he should have been at times. The court was required to determine whether the father had emotionally abused the children and whether there were any incidents of family violence. The court found that the father had not emotionally abused the children but had committed an act of family violence by throwing the mother's iPad, which caused her to be fearful.
The court considered the evidence provided by the parties and the expert opinion of Ms L, a psychologist. Ms L expressed concern that the father may have favoured one child over the others and exhibited a lack of interest, insensitivity, or cruelty towards the other children. However, Ms L also acknowledged that there could be a range of possible explanations for the children's behaviour and that the father's alleged behaviour could be entirely related to relationship issues with the mother. The court found that the father's attendance at the children's daycare was unwise but not abusive or threatening. The court also found that the father's significant absences from the family and his return, proved challenging at times for members of the family. The court concluded that the father had not emotionally abused the children but had committed an act of family violence by throwing the mother's iPad, which caused her to be fearful.
The court considered the evidence provided by the parties and the expert opinion of Ms L, a psychologist. Ms L expressed concern that the father may have favoured one child over the others and exhibited a lack of interest, insensitivity, or cruelty towards the other children. However, Ms L also acknowledged that there could be a range of possible explanations for the children's behaviour and that the father's alleged behaviour could be entirely related to relationship issues with the mother. The court found that the father's attendance at the children's daycare was unwise but not abusive or threatening. The court also found that the father's significant absences from the family and his return, proved challenging at times for members of the family. The court concluded that the father had not emotionally abused the children but had committed an act of family violence by throwing the mother's iPad, which caused her to be fearful.
Orders
Orders of the court
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Background
Background to the litigation
Before considering each of the identified issues it will be helpful to set out some background to the dispute and the legal principles which apply to all parenting cases. BACKGROUND The father and mother commenced cohabitation sometime between 2011 and 2013, married in 2017 and separated on 20 January 2019 when the father returned home to find the mother, children and their possessions gone. The three children who are the subject of these proceedings are aged 8, 7 and 6. X (“X”) was born in 2012, Y (“Y”) was born in 2014 and Z (“Z”) was born in 2015 (“the children”). The mother was twenty-two weeks pregnant with the parent’s fourth child when she underwent a termination on medical advice in 2016. The child was named B. The children currently attend E Town School after transferring from H School in September of 2020. The children are doing reasonably well at school. The mother has two other children, G aged 17 and K aged 15. Until recently both boys lived with the mother. G now lives with his father. K continues to live with the mother. The father was born in 1981 and is currently 39 years of age. The father is currently working in northern Western Australia. The father was born in New Zealand and moved to Australia in February of 2011, shortly prior to meeting the mother. Throughout most of the relationship, the father was employed in transport which involved being away from home for up to nine weeks at a time. The financial circumstances of the family (two adults and five children) were often stretched and on occasions when the father obtained local work it was insufficient to provide for the financial needs of the family. At the time the parties separated, the father’s employment required him to work a two week on and two week off roster. The father contends that when he was at home, he had “completely uninterrupted time with the children” and he would attend to school pickups and drop offs and would play with the children. It is common ground that the father’s significant absences from the family and then his return, proved challenging at times for members of the family. Since separation, the father has returned to New Zealand on two occasions. The first being in April 2019 when he spent an initial three weeks visiting family and then returned to Australia briefly in mid-May 2019. The father returned to New Zealand in late May 2019 where he stayed until 2 July 2020 (except for one week when he returned to Australia to finalise the property proceedings). The father contends that he returned to New Zealand because he suffered a psychological breakdown. During his time in New Zealand, the father contends he was struggling to process the grief associated with the loss of their fourth child in 2016, together with the breakdown of his relationship with the mother and not being able to see the children. Whilst in New Zealand the father sought counselling and received support from his family. The father currently lives in J Town, Queensland but is intending to relocate to the same town as the children.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Prior to his attendance at the children’s day care the father was informed by police that there was nothing preventing him from going there. The paternal grandmother accompanied him. The attendance by the father, on this one occasion, was unwise but when asked to leave by police, he did so. Neither the father nor his mother engaged in any abusive or threatening behaviour. Conclusion on family violence in relation to the mother I find that the incident culminating in the father throwing the mother’s iPad was an act of family violence that involved damage to property and caused the mother to be fearful. I am not otherwise persuaded that the behaviour and statements attributed to the father fall within the definition of family violence. HAS THE FATHER EMOTIONALLY ABUSED Y AND X? The nature of the alleged emotional abuse is said to involve the father playing favourites i.e. giving preferential treatment and attention to Y over X. Secondly, that the father often caused the children pain in the guise of play and laughed when they cried. The mother provides two particulars. The first is that the father “regularly” dropped X on her bed causing her to bite her tongue and then laughed at her. The second is that on one occasion on approximately 12 January 2019, Z was sitting on the father’s leg when the father “deliberately” jerked his leg causing the child to fall off and land on her head. The father then blamed Z for not holding on. The mother contends that the father regularly “gas lighted” the girls into believing they were responsible for his “mistreatment” of them. Thirdly, that the father regularly called the girls derogatory names such as “stink-rat”, “weirdo” or “MY daughters” and rarely used their names. The mother contends that she, and the girls, were in a “constant state of cognitive dissonance and confusion”. It is submitted on behalf of the mother that “some credence” for the mother’s allegations is to be found in Ms L’s assessment of X as quite insecure and Y’s comments to Ms L in October 2020 that “Us three little girls don’t really care about Dadda, he didn’t like any of us. He wasn’t nice to us girls”. The father denies emotionally abusing the children whom he describes as being “everything” to him. He nevertheless acknowledges that there were times, particularly after the untimely death of B, that he may not have been as emotionally available to the children as he should have been. The father’s responsibility for meeting the majority of the financial needs of the family also required significant absences from home and when at home, he contends he tried to make up for lost time. The father deposes to having addressed a number of his emotional vulnerabilities while living in New Zealand and expresses an intention to undertake parenting courses when his employment permits. Ms L opines that on the day of the interviews on 15 October 2020 – “X stood out as quite insecure, as she did not seem to recognise or fully express her own feelings and distress, and instead quickly minimising her feelings and giggled nervously … also appeared very quick to trust and bond with the writer”. While Ms L speculates that X’s presentation may be the result of “emotionally harmful parenting”, and expresses understandable concern if the father favoured Y and “exhibited a lack of interest, insensitivity or cruelty towards X”, she readily acknowledges that there could be “a range of possible explanations for X’s somewhat vulnerable presentation, including insecurity resulting from parental attention being drawn away from her and towards younger siblings twice during X’s early years, a reaction to her parents’ separation or the absence of her father, or a particularly sensitive or anxious disposition”. Ms L further acknowledges that the father’s alleged behaviour “could be entirely related to relationship issues with [the mother], and his parenting could improve dramatically once in a position to focus solely on the children”. Ms L opines that the father would benefit from receiving “psycho-education about the importance of emotional availability and responsiveness to children, as well as building self-esteem and communication strategies, and maintaining routines, particularly around school-work”.
Ratio Decidendi
Legal Principle Established
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