FAMILY LAW – CHILDREN – spend time arrangements for the child – where the mother seeks sole parental responsibility and for the child to live with her and indefinite supervised time with the father – where the father concedes sole parental responsibility to the mother save for an obligation for her to consult him in relation to major long term issues and consider his views – where the father seeks time with the child initially on a supervised basis progressing to unsupervised time – where the father poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing – where the father has shown no genuine commitment to the child – where the father has perpetrated serious family violence – where it is found that it would be in the best interests of the child for the mother to have sole parental responsibility for the child without any obligation to consult the father in relation to major long terms issues – where the child should live in the care of the mother and spend only supervised time with the father until he turns 12 years of age – where indefinite supervision until the child is an adult is not appropriate
FAMILY LAW – COSTS – circumstances justifying order – where the mother sought costs against the father for particular aspects of his conduct of the proceedings – where the mother sought costs on an indemnity basis – where the father opposed the application for costs – where the mother says the father had a wilful disregard for the law and proper processes and made groundless applications – where it is appropriate that the mother be awarded costs in accordance with scale for the period 18 December 2018 to 8 May 2019 and on an indemnity basis for the adjournment of the trial on 28 October 2020
Legislation:
Evidence Act 1975 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 61C, 61DA, 62G, 64B, s 65D, 65DAA, 65DAB, 65DAC, 67Z, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.47
[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.
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AGLC
Metaxas & Sargent [2022] FedCFamC1F 97
Case
[2022] FedCFamC1F 97
Decision Date
CaseChat Overview and Summary
The case of Metaxas & Sargent involved a dispute between the father and mother regarding the care and supervision of their child. The father sought unsupervised time with the child and to be consulted about major long-term decisions, while the mother opposed these requests, citing concerns about the father's past behavior and the risk of emotional and psychological harm to the child. The matter was heard in the Family Court of Australia. The primary legal issue before the court was whether the father presented an unacceptable risk of harm to the child, which would justify limiting his unsupervised time and excluding him from major decision-making processes. This involved a comprehensive assessment of the evidence and allegations of family violence and other concerning behavior by the father.
The court carefully examined the evidence presented by both parties, including affidavits, witness testimonies, and expert reports. It found that the father's past behavior, including patterns of family violence and un-child-focused conduct, provided a basis for the mother's concerns about the risk of harm to the child. The court also noted that the father had limited his contact with his older daughter, which was relevant to the assessment of his commitment to maintaining a relationship with the child in question. Given these findings, the court concluded that the father did present an unacceptable risk of harm to the child and ordered that he have only limited supervised time with the child until the child turned 12 years old. The father retained the right to apply for unsupervised time after this period, contingent upon demonstrating that the supervised regime had been successful.
In light of the findings and the best interests of the child, the court made orders that the father would have limited supervised time with the child until the child turned 12. This decision balanced the father's rights with the need to protect the child from potential harm, reflecting the court's commitment to prioritizing the welfare of the child in family law matters.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
There will accordingly be orders substantially as proposed by the mother, save that the regime of limited supervised time that she proposes will continue only until the child is 12 years of age. Thereafter, if the father wishes to make an application for unsupervised time, there will be nothing to stop him from doing so. No doubt the success or failure of such an application will turn on the reasonableness of his grounds, and in particular whether the regime of limited supervised time for the next seven years has been a success. BACKGROUND The father was born in 1976 and is aged 45. The mother was born in 1982 and is aged 39. The parties appear to have commenced a relationship in 2014. There is disagreement between them as to when they commenced cohabitation (the father saying it was 2016 and the mother saying it was 2015), but nothing turns on this. It is plain that the relationship between the parties was highly fraught. The mother says that the parties separated on a final basis on June 2017, whereas the father maintains it was December 2017. It is the mother’s case that between December 2015 and June 2017 they separated on several occasions due to the ongoing family violence inflicted upon her by the father. The first family consultant who prepared a report suggests that the parties may have separated and reconciled as many as twenty times. As has been mentioned, the child was born in 2017. At the time of the trial the father resided with his parents in Suburb D, Victoria. The father appears to have had a long term career as a professional, however he says that he did not work in 2017, that he worked for nine months in 2018, and that he worked for only six months in 2019. The father seemed to be working at the time of the trial, however his later submissions on the question of costs contended that he was unemployed in June 2021, with his last job having ended that month. The father was apparently not in a relationship at the time of the trial, although there is significant evidence in the proceedings from a woman with whom he had a relationship after his relationship with the mother. He does, however, have a daughter from a much earlier relationship. This child (“Y”), was born in 2005 and is now aged 16. She lives with her mother in the United Kingdom, and it would seem that the father has no functioning relationship with her. According to Y’s mother, Ms E, who has sworn an affidavit in the proceedings in support of the mother, the father has not had in-person contact with the daughter since she was five years old. She says that electronic communication was ended by the father when the daughter was 15 years old because of a dispute which arose because Ms E allegedly made contact with the mother. Both Ms E and the mother say that they maintain a level of contact so that the daughter and the child have an opportunity to develop a sibling relationship. The father alleges that Ms E prevents him from maintaining electronic communication with his daughter.
Evidence
Evidence Before The Court
Whatever be the nature of the underlying conduct in issue where parties allege that they each represent a risk to the child, the risk assessment exercise to be undertaken proceeds by examining the relevant facts – here the allegations of emotional and psychological abuse which are made by the mother and to a lesser extent the father – and conducting the fact finding exercise by reference to the civil standards of proof. If the parties’ denials of the allegations made against them are to be rejected, there must be reasons given for doing so: Napier v Hepburn (2006) FLC 93-303 at [79] (Bryant CJ and Kay J, with Warnick J agreeing at [113]); In the Marriage of Blanch (1999) FLC 92-837 at 84,745 (Lindenmeyer J). The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Pt VII of the Act.THE EVIDENCE It is against this factual and legal background that it is necessary to consider the relevant evidence. In addition to the affidavit material filed, the father gave evidence and was cross examined on the first and second day of the trial. His mother, Ms K, and his sister, Ms L, also gave evidence and were cross examined on the second day of the trial. The mother gave evidence and was cross examined on the afternoon of the second day of the trial, continuing into the third morning, and the second family consultant, Ms N, also gave evidence and was cross examined on the third day of the trial. Although the affidavits of Ms M, Ms O, Ms E and Dr H were relied on by the mother, none of these witnesses were required for cross examination. I proceed on the basis therefore that their evidence is effectively unchallenged. It will be necessary to return to the significance of this evidence, particularly that of Ms O and Ms E. It is clear that the parties’ relationship was, from an early date, highly vexed. As will become apparent, there have been patterns of family violence and other un-child focused behaviour on the part of the father which provide a basis for the mother’s claim that there is an unacceptable risk of emotional and psychological harm to the child should the father be permitted to have unsupervised time with him. While it is unnecessary to refer explicitly to all aspects of the considerable volume of evidence that was led by the parties, it is necessary to refer to the evidence which bears on the father’s case that he should be able to have unsupervised time with the child and be consulted about major long term decisions, and the mother’s case that the father should not have unsupervised time with the child because he presents an unacceptable risk of harm to the child and because he does not have a genuine commitment to having a relationship with the child.