Montilla & Puno
[2022] FedCFamC2F 1432
Federal Circuit and Family Court of Australia
(DIVISION 2)
Montilla & Puno [2022] FedCFamC2F 1432
File number(s): ADC 2726 of 2018 Judgment of: JUDGE STREET Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – where the applicant father is incarcerated and is likely to be incarcerated for an extended period of time – where there was a consent position as to certain final orders – where the Court finds unacceptable risk to respondent mother and children outweighs benefit of time with applicant father Legislation: Family Law Act 1975 (Cth) pt VII; divs 2, 11; ss 4, 4AB, 43(1), 60B, 60CA, 60CC, 60CG, Cases cited: Blinko & Blinko [2015] FamCAFC 146
Clayton & Minshall [2021] FedCFamC1F 183
Goode & Goode [2006] FamCA 1346
Isles v Nelissen [2022] FedCFamC1A 97
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 17 October 2022 Place: Parramatta Solicitor for the Applicant: Mr Wabnitz, Daniel John Lawyers Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd ORDERS
ADC 2726 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MONTILLA
Applicant
AND: MS PUNO
Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
17 OCTOBER 2022
THE COURT ORDERS THAT:
1.Any earlier parenting orders are vacated.
2.The respondent mother have sole parental responsibility for the children X born in 2014, Y born in 2013, and Z born in 2017 (“the Children”).
3.The Children live with the respondent mother.
4.The Children spend no time with the applicant father.
5.The applicant father be restrained by injunction from:
(a)Attending any childcare facility, kindergarten, school, hospital, medical practice, therapeutic centre, clinic or the respondent mother’s residence which the Children or the respondent mother may be attending;
(b)Removing the Children from any childcare facility, kindergarten, school, hospital, medical practice, therapeutic centre, clinic or the respondent mother’s residence or any other premises;
(c)Contacting via telephone the maternal grandmother or other family members of the mother to obtain information about the Children or the respondent mother.
6.The Court’s reasons for the above orders are reserved.
THE COURT NOTES THAT:
A.No opposition was raised by the applicant father to the injunctive orders. The applicant father consented to the parental responsibility, live with and spend no time with orders above.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Montilla & Puno has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
This matter was fixed for a final parenting hearing on 17 October 2022, in respect of proceedings commenced on 11 July 2018. There are three children of the relationship between the applicant father and respondent mother, being:
·X, male, born in 2013;
·Y, male, born in 2014; and
·Z, female, born in 2017 (collectively “the Children”).
Before the Court
At the commencement of the hearing, the Court was informed by Mr Wabnitz, solicitor for the applicant father, that the applicant father is on remand in respect of offences likely to be the subject of a custodial sentence if convicted, involving the respondent mother as a complainant.
The Court treated as having before it the affidavit material that had been filed, including the Family Report dated 27 July 2021.
Mr Wabnitz indicated that the applicant father consented to the respondent mother having sole parental responsibility, for the Children to live with the respondent mother, and for there to be no time spent by the applicant father with the Children. Mr Wabnitz indicated that his client neither consented to nor opposed the injunctive orders being sought by the applicant mother.
Chronology
The chronology that appears in the respondent mother’s case outline is as follows:
Date Event 2005 Husband arrives in Australia from Country B on Humanitarian Visa 2017 Parties marry in the Country C 2017 Wife travels to Australia on spousal visa 2013 Child X born 2014 Child Y born 2017 Child Z born 2014 – 2016 Husband brings the children X and Y to live in Australia when the children were 8 months old and 9 months old respectively. The paternal grandmother provides significant care for the children. The wife remained in the Country C to complete her studies 2016 Husband suffers a mental health crisis in the Country C, and is violent towards the wife for the first time 2017 Wife arrives in Australia and is taken by husband to a medical appointment relating to his mental health 2017 Wife falls pregnant with youngest child, and baby is identified at 3 months gestation with a significant heart problem. Husband refused to accept diagnosis 2017 Baby Z born with serious heart defect. Husband attempts to remove baby from D Hospital Intensive Care Unit. February 2018 Husband attends medical appointment at D Hospital with wife and baby, and is removed from the hospital by security and banned from attending after arguing with doctors. Husband is arrested and detained under the Mental Health Act at E House. A Restraining Order is issues, naming the wife and the children as protected persons, and the wife agrees to remove the children when asked to do so by police. 2017-2019 Child Z undergoes several major cardiac operations at the F Hospital, Melbourne. 12 July 2018 Husband make application to Court seeking that the children spend time with him each alternate weekend. 30 November 2018 Order made for husband to spend supervised time with the children Y and X at the Children’s Contact Service. 24 September 2019 Husband released on a Conditional Licence and a final Intervention Order granted. December 2019 Children X and Y refuse to spend time with the husband at the CCC. 1 June 2020 Husband files report from treating psychiatrist re his ongoing treatment. Report indicates that husband placed on a further Level 2 Community Treatment Order to ensure his compliance with medication. 2 February 2020 Order that made the child Z commence spending supervised time with the husband at the CCC. 17 February 2020 Report from father’s treating psychiatrist indicates that the father’s Community Treatment Order has lapsed and the husband is a voluntary community patient. 29 July 2020 Report from CCC indicates positive interaction between husband and the 3 children. 27 July 2020 Family Assessment Report by Ms G states husband was shocked to discover wide has a new partner and child; that husband does not agree with the diagnosis of schizophrenia and denied any issues with his mental health. Also notes that husband had not agreed to the child Z’s surgery. October 2021 Husband’s solicitor requests copies of children’s school reports. The wife refuses to provide these for fear the husband would identify the school and attempt to remove the children. 14 October 2021 Husband attends at children’s school and is arrested and detained by police before being released on bail. 17 October 2021 Husband is arrested in the rear yard of the wife’s home. Husband charged with 3 counts of Breach of Restraining Order. The Family Report DATED 27 July 2021
The family report writer identified the importance of the safety and the wellbeing of the Children, the significant history of alleged family violence, and the applicant father’s mental health remaining a critical issue.
The family report writer identified the Children were happy and thriving in their current care arrangements and have a loving and secure primary attachment with the respondent mother and her new partner.
This is a case where there was also an alleged act of physical violence perpetrated against a child by the applicant father. The family report writer identified that the respondent mother’s accounts of family violence, if accepted, should be considered acts of controlling and coercive family violence. The family report writer made reference to the past alleged intimate partner violence and the applicant father’s apparent lack of insight into his own mental health needs, the denial of his schizophrenia, as well as the relatively young age of the Children, and one in particular.
The family report writer recommended a cautious approach in relation to the Children spending time with the applicant father, and that that concern included the Children’s physical safety and emotional wellbeing, as well as the potential for the respondent mother’s diminished parenting capacity because of ongoing safety concerns for herself and the Children due to the past family violence.
OTHER EVIDENCE
The respondent mother’s affidavit identifies mental health issues with the applicant father, who refused to accept that the youngest child was identified as having a serious cardiac condition at about 3 months into the pregnancy of the respondent mother. When the youngest child was born, the applicant father attempted to remove her from the hospital and continued unacceptable behaviour in relation to the youngest child’s serious condition. The applicant father described being dragged back to hospital resulting in police and security being called. The respondent mother is of the view that the children are not safe in the applicant father’s care and, in particular, the refusal to accept the youngest child’s serious on-going heart issues.
The respondent mother identified the applicant father as failing to comply with his medication for mental health issues. The applicant father was admitted to E House for a relapse of paranoid schizophrenia. There is a report identifying that the Children have been placed at risk because of his behaviour, as well as opining on the need for his adherence to his mental health treatment. The respondent mother has identified a fear of serious risk of harm to the youngest child due to the applicant father’s mental health issues. A psychiatric report dated 16 July 2019 identified the applicant father’s limited acceptance of his condition and identified the high risk of relapse of his illness, and that this would carry a significant risk to his partner and the Children.
The respondent mother identified her fear of the applicant father removing the Children and an incident on 14 October 2021. The respondent mother identified her fear for her safety, and that the applicant father poses a significant risk to her and the Children. The respondent mother identified the applicant father as being charged with 3 breaches of restraining orders in relation to her. The respondent mother identified communications by the applicant father to her mother and the making of demands as to where the respondent mother was living.
The respondent mother’s evidence included a report of Dr H, dated 11 February 2021, which identified that the applicant father continued to be disabled by negative symptoms and a referral was commenced. The respondent mother’s affidavit dated 19 January 2022 identified a request for an updated psychiatric report but none was attached and no other facts were deposed to as to the referral.
The Law
The Court has taken into account the principles identified in s 43(1) of the Family Law Act 1975 (Cth) (“the Act”) and, in particular in this case, the need to ensure protection from family violence. The Court has taken into account pt VII of the Act, including the objects and principles underlying it in s 60B of the Act, and the paramount consideration being the best interests of the children identified in s 60CA of the Act. The Court has also taken into account the statutory pathway identified in Goode & Goode [2006] FamCA 1346 at [65].
Section 60CC of the Act sets out how the Court is to determine what’s in the child’s best interests by reference to the primary considerations and the additional considerations. In applying the primary considerations, the Court is to give greater weight to the need to protect the Children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.
The Court has taken into account the definition of abuse in s 4 and of family violence in s 4AB of the Act. The Court has also taken into account that this is a case where there are in place family violence orders under div 11 of the Act. However, no inconsistency is likely to arise from the orders proposed to be made by this Court.
The Court has also taken into account the obligations identified in s 60CG of the Act to ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. Given that the proposed position in the present case is one of consent in respect of parental responsibility, living with the respondent mother and no time between the applicant father and the Children, it is not necessary for the Court to further address the statutory factors in its reasons.
The Court has taken into account the meaning and balancing exercise required in relation to unacceptable risk of the Full Court of the Family Court in Stott & Holgar and Anor [2017] FamCAFC 152 at [35] to [38]. The Court must take into account implications arising from findings on the possibilities in determining the nature and magnitude of the alleged unacceptable risk: Isles v Nelissen [2022] FedCFamC1A 97 at [45].
The Court has also taken into account the principles identified in Clayton & Minshall [2021] FedCFamC1F 183 at [88] to [90] as to the high standard required to justify elimination of a parent from the children’s lives in respect of the risk of loss of parental capacity. The Court has taken into account the need for the fears in respect of capacity of the primary carer to be genuine and rational: Blinko & Blinko [2015] FamCAFC 146 at [79].
FINDINGS AND Conclusion
Suffice to say, given the history identified in the above chronology, which the Court finds is correct, the content of the family report and the evidence referred to, the Court is satisfied that the proposed consent orders are appropriate and in the best interests of the Children. The facts reveal very serious adverse conduct by the applicant father in relation to the three breaches of restraining orders and serious ongoing mental health issues of the applicant father that, upon the evidence, have not been addressed. Incarceration of the applicant father may be of a duration that reduces the risk to the respondent mother and the Children of family violence, however no argument has been presented as to why the period of incarceration should be regarded as diminishing the ongoing risk after release. The Court finds that the probability of the harmful outcome of significantly diminished parenting capacity by the respondent mother is high, given the serious breaches by the applicant father and his ongoing mental health issues. The Court finds that this evidence demonstrates a serious risk of the respondent mother losing her parenting capacity.
The Court is also satisfied that the proposed orders are in the best interests of the Children so as to ensure and preserve the parenting capacity of the respondent mother and her ability to perform her role of sole parental responsibility. Given the consent by the applicant father and the material referred to above the Court is satisfied that this is a case where there is a real and significant unacceptable risk to the Children in respect of the respondent mother’s capacity to parent that makes the proposed orders appropriate. The Court also finds that there is an unacceptable risk of harm to the Children, one of whom has a cardiac condition due to the ongoing mental health issues of the applicant father. That mental health issue of the applicant father is not, on the evidence, under control and poses a real and significant risk to the Children as identified in the report dated 16 July 2019.
The likelihood of that parental incapacity where the respondent mother, on the evidence before the Court, has been the subject of physical family violence is high and the severity of the risk, if manifested, in respect of the three relatively young Children, in particular the youngest with ongoing cardiac issues, is significant. This is particularly so where the Children are to live with the respondent mother and given the respondent mother’s expressed fears, which the Court accepts are well-founded in the sense of being genuine and rational, would be likely to materially impede her ability to discharge her obligations to the Children of parental responsibility identified in div 2 of pt VII of the Act. The Court finds that respondent mother’s capacity to parent would be so affected that it would impact on and erode her capacity and ability as the primary carer so as to materially impinge on the Children’s best interests. The Court is satisfied that this risk of parental incapacity of the live with parent outweighs the possible benefit to the Children from time with the applicant father. The Court appreciates that the spending of no time means that there is likely to be no meaningful relationship between the applicant father and the Children, however this outcome is outweighed by the identified unacceptable risks to the Children in this case.
In relation to the proposed injunctive relief, the respondent mother withdrew a proposal in respect of a denigration order, given that this was a no-time case, but did seek an order preventing the applicant father from attending facilities that the Children would attend, or from attempting to remove the Children from the respondent mother, or from facilities being attended by the Children.
There was also an order sought preventing the applicant father from contacting the respondent mother’s family. It is apparent that the prior contact that occurred was by telephone, and it is alleged that the telephone conversation was one in which there was a seeking of inappropriate information and that the telephone call caused a level of distress.
The Court is satisfied that it is appropriate to make the injunctive orders as identified, on the basis that they are in the best interests of the Children and are orders most likely to prevent any future family violence. It is for these reasons that the Court has made the above orders.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street.
Associate:
Dated: 28 October 2022
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