NACAR & NACAR

Case [2020] FCCA 103

FEDERAL CIRCUIT COURT OF AUSTRALIA

NACAR & NACAR [2020] FCCA 103
Catchwords:
FAMILY LAW – Parenting – mother unilaterally relocated – expedited trial – mother’s evidence is that she will return if children are ordered to – father’s mental health – family violence – finely balanced case – due to state of evidence interim orders with respect to the father’s time made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65DAA(1), 65DAA(2), 65DAA(3), 65D

Cases cited:  

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4
Taylor & Barker [2007] FamCA 1246
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Applicant: MR NACAR
Respondent: MS NACAR
File Number: MLC 4210 of 2019
Judgment of: Judge Harland
Hearing dates: 14 and 15 November 2019
Date of Last Submission: 15 November 2019
Delivered at: Melbourne
Delivered on: 22 January 2020

REPRESENTATION

Counsel for the Applicant: Mr Alexander
Solicitors for the Applicant: Moloney Maccallum Abdelshahied Lawyers
Counsel for the Respondent: Mr Hoult
Solicitors for the Respondent: Farrar Gesini Dunn

ORDERS

FINAL ORDERS

  1. The children [W] born … 2007, [X] born … 2008, [Y] born … 2010 and [Z] born … 2012 (“the children”) live with the mother.

  2. That the mother have sole parental responsibility for the children provided that the mother consult with the father about any proposed decisions with respect to major issues concerning education and health and:

    (a)notify the father in writing of any proposed decision;

    (b)give the father fourteen (14) days to respond before a final decision is made, except in the case of an emergency;

    (c)take into consideration any views expressed by the father in respect of such proposed decisions; and

    (d)inform the father in writing of the decision made.

  3. The children communicate with the Father via Skype on 2 occasions per week as agreed by the parties in writing from time to time and, failing agreement, on Sunday and Wednesday evenings from 6pm until 6:30pm.

  4. Both parties shall ensure that each other is kept informed of the residential address and contact details of each party.

  5. Each is to advise the other party of any medical emergency as soon as practicable.

  6. Each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.

  7. The mother is to authorise the children’s schools and medical treaters to provide the father information with respect to the children and to notify the father that she has done so together with names and contact details of the relevant contacts.

INTERIM ORDERS

  1. The children spend time with the Father every weekend:

    (a)from 10:00am to 4:00pm Saturday; and

    (b)from 10:00am to 4:00pm Sunday.

  2. For the purpose of the children’s time with the father:

    (a)Changeovers shall occur between the Mother and the paternal grandmother, Ms A Nacar, only; and

    (b)The paternal grandmother,…

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Details
AGLC
Nacar and Nacar [2020] FCCA 103
Case
[2020] FCCA 103
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Mr Nacar (the applicant father) and Ms Nacar (the respondent mother) concerning the parenting of their four children. The primary issue before the Federal Circuit Court of Australia was the mother's unilateral relocation of the children from Victoria to Queensland in March 2019. The court was required to determine the children's living arrangements and the extent of each parent's responsibilities and time with the children, considering allegations of family violence and the father's mental health.

The court was tasked with determining the best interests of the children in light of the mother's relocation and the parties' conflicting accounts of family violence and the father's mental health. Key legal issues included assessing the credibility of the parties' evidence, the impact of the father's past alcohol and drug use and alleged family violence on his parenting capacity, and the mother's actions in relocating the children and seeking an intervention order. The court also had to consider the father's mental health reports, which indicated suicidal and homicidal thoughts, and the mother's stated fear of the father.

Judge Harland noted the lack of evidence presented by the mother regarding her family's support, contrasting it with the father's assertions of strong familial support. The court found that the father's evidence was coloured by the mother's relocation and that he tended to minimise his own role in the parties' difficulties. The court acknowledged the mother's fear of the father, supported by an interim intervention order and a family report indicating the mother presented as genuinely frightened. Despite the father's denial of family violence and his claims of the mother's aggression, the court found his explanations for certain incidents, such as scratch marks, unconvincing. The court also considered the family report's findings regarding the children's perception of the father's irritability and anger.

The court made final orders that the children live with the mother and that she have sole parental responsibility, with specific provisions for consultation with the father on major decisions concerning the children's education and health. The children were ordered to communicate with the father via Skype twice weekly. Interim orders were made for the children to spend time with the father every weekend, with changeovers to occur only between the mother and the paternal grandmother, who was to be in substantial attendance during the father's time. Both parties were ordered to undergo hair follicle drug testing.

Orders

Orders of the court

FINAL ORDERS

1.

The children [W] born … 2007, [X] born … 2008, [Y] born … 2010 and [Z] born … 2012 (“the children”) live with the mother.

2.

That the mother have sole parental responsibility for the children provided that the mother consult with the father about any proposed decisions with respect to major issues concerning education and health and:

(a) notify the father in writing of any proposed decision;

(b) give the father fourteen (14) days to respond before a final decision is made, except in the case of an emergency;

(c) take into consideration any views expressed by the father in respect of such proposed decisions; and

(d) inform the father in writing of the decision made.

3.

The children communicate with the Father via Skype on 2 occasions per week as agreed by the parties in writing from time to time and, failing agreement, on Sunday and Wednesday evenings from 6pm until 6:30pm.

4.

Both parties shall ensure that each other is kept informed of the residential address and contact details of each party.

5.

Each is to advise the other party of any medical emergency as soon as practicable.

6.

Each party is restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so in the presence or hearing of the children.

7.

The mother is to authorise the children’s schools and medical treaters to provide the father information with respect to the children and to notify the father that she has done so together with names and contact details of the relevant contacts.

INTERIM ORDERS

8.

The children spend time with the Father every weekend:

(a) from 10:00am to 4:00pm Saturday; and

(b) from 10:00am to 4:00pm Sunday.

9.

For the purpose of the children’s time with the father:

(a) Changeovers shall occur between the Mother and the paternal grandmother, Ms A Nacar, only; and

(b) The paternal grandmother, Ms A Nacar shall be in substantial attendance at all times the children spend time with the father.

10.

Both parties undertake a hair follicle drug test for illicit substances, at their expense, at such approved testing agency as nominated by the Independent Children within the next 7 days, with such test to cover the full length of their hair, and to provide the results of same to the Independent Children’s Lawyer, the other party’s solicitors, and this Court within 48 hours of receipt.

11.

To give effect to order 10 herein, both parties are required to maintain their head hair at the same length as today; neither head hair not body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair.

12.

The proceeding is adjourned to the Duty List on … 2020 at 9:45am.

13.

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017.

NOTATIONS

(A) If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(B) Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(C) Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(D) If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties. (B)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing. (C)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet. (D)If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.IT IS NOTED that publication of this judgment under the pseudonym Nacar & Nacar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). FEDERAL CIRCUIT COURTOF AUSTRALIAAT MELBOURNE MLC 4210 of 2019 MR NACAR ApplicantAnd MS NACAR RespondentREASONS FOR JUDGMENTBackgroundThis case is remarkable in regards to the lack of evidence before the court in light of the issues in dispute between the parties. Whilst the case took up comparatively little court time at trial, it has been necessary to carefully study the transcript and the parties’ court documents.The matter was given an urgent hearing due to the unilateral relocation of the children by the mother in March 2019 from Victoria to Queensland. A private family report was undertaken and provided to the Court in August 2019. Whilst property orders were also sought by the parties, the financial issues in dispute were not ready to proceed at the hearing on 14 and 15 November 2019.The parties have four children: [W] aged 12, [X] aged 11, [Y] aged 9 and [Z] aged 7.The primary issues in dispute are with respect to family violence and the father’s mental health. The mother unilaterally relocated to Queensland with the parties’ four children. Family violence services provided her with practical and financial support to move. The mother wants to stay in Queensland with the children. She wants the father to have time supervised by his mother. The father seeks for the mother and children to return to Melbourne and to live in an equal shared care arrangement. In the event the court determines that the children should remain in Queensland, he seeks significant school holiday time in Melbourne. The parties met in 2004 when they were both serving in the military. They initially separated in May 2018 and reconciled in August 2018. They separated on a final basis on 7 February 2019.The father’s evidence The father said during cross-examination that “during a domestic” (presumably referring to arguments between the parties) and during the marriage breakdown the family household was not a great environment for the children. He says those things are no longer an issue for him (referring to drug and alcohol use) but could not say whether that was the same for the mother as he has not been in her life since separation.When asked about what he would say about himself as a parent at those times he was using alcohol and drugs, he initially said that it did not detract from him being a parent. When pressed, he said that it would have an impact in any parent’s life. When examining the transcript of the evidence where the father answered these questions, he avoided responsibility for his actions and choices.The mother’s case is that she is frightened of the father and that her fear is not solely based on Dr B’s report. Dr B is the father’s treating psychiatrist and his first report refers to the father having suicidal and homicidal thoughts. During cross-examination the father acknowledged that if the mother was frightened of him that would have an impact on the children but said that the issue was whether or not it is valid. The father said he does not think it is. He accepted that any decision around the children has to put their safety first and accepted that the mother’s emotions could have an impact on the children. He accepted that children pick up on when both parents are happy or sad and said that the children’s well-being is what is more important and that is what the parents have to focus on to facilitate what is in their best interests.The father says that when the parties separated for some months in 2018, the children lived in a week about arrangement between the parents. He says the arrangement worked well and the boys flourished. He very much wants a return to that arrangement. He wants the children to return to the Suburb C area and their previous routines. The father intends to remain in Suburb C. Following several questions under cross examination, his position was that the parties did not have to live in Suburb C provided that the children’s routines were not interrupted.The father had difficulty identifying positives about the mother in her capacity as a parent and when pressed he said she has been a good parent at times. I accept that his attitude is coloured by the mother’s unilateral removal of the children. That was clear from the tenor of his evidence overall. When the father was cross-examined about the numerous complaints he makes about the mother in his affidavit with respect to alcohol use, drug use and family violence, he sought to distance himself somewhat by saying several times that that has been raised in affidavit.The father strongly disagreed with the proposition put to him by the mother’s Counsel that for every complaint the wife makes about him he makes one about her. Looking at his affidavit that is exactly how it reads with respect to the alcohol and drug use. For example, he does this at paragraphs 47 and 48 of his affidavit filed 4 November 2019.The father could not see a disconnect when cross-examined about the fact that he makes complaints about the mother’s alcohol and drug use and family violence towards him, yet says that the best arrangement for the children would be to live in a week about arrangement with both parents.The father says that his parents have been extremely supportive of both of them and the children have always had a close relationship with them. In contrast he says that the mother’s relationship with her parents and sister are strained and that she would have fallings out with them and not speak to them for months. He says they only visited about five times in the last 10 years. Not having any evidence from any of her family members is a significant gap in the mother’s case. Family violenceBoth parties make allegations of family violence against the other. Intervention Order On 15 February 2019 the Court D at Suburb E issued an interim intervention order (“IVO”) against the father based on a police application naming the mother and the four children as affected family members. The father’s oldest daughter [F] aged 16, is also included as an affected family member. He says prior to the IVO he was seeing his oldest daughter regularly but since the mother spoke to [F]’s mother about Dr B’s first report, she had not wanted her to see him. On 8 February 2019 the mother and the father were home. The children were due to return home shortly. She cannot recall what angered the father outside but he was yelling at her and was very close to her face and then he started throwing glasses on the ground. She said to him that he needed to stop as the children would be home soon. The father left the house. The mother says she called Ms G from Counselling Service H, as they arranged crisis accommodation for her and the children.Counselling Service H. The mother says she received a call from a police officer on 10 February 2019 telling her that the father had requested a welfare check on the children. The mother said she was scared and confused. She rang the office the next day and told the police officer about the history of family violence and that they were in a safe house. She emailed a copy of Dr B’s report to the police who issued a Family Violence Safety Notice that day.The father attended the Court D at Suburb E on 15 February 2019 for the hearing of the police application for an IVO. The father breached the safety notice by copying the mother into two emails and also by sitting in a chair at the entrance of the safe room at Court, which made her feel scared and intimidated. After speaking to one of the staff members they made him move. The interim IVO excluded the father from the home so she and the children returned to stay at the home for about two weeks. The mother was scared that the father would attend the home and threaten her and the children or physically harm them. She was also concerned that he may still have cameras in the house and be watching her.The father complains that the mother accessed Dr B’s first report without his knowledge by using his work email. He says she used this and particularly the reference to the father having homicidal and suicidal thoughts to obtain the IVO. I do not accept the implied criticism that the mother did this cynically. The mother denies obtaining the report improperly and says the father gave her a copy. The mother says the father emailed her a copy of Dr B’s report after she asked how his first session went. Given the mother’s involvement in seeking medical help for the father and the fact that the parties had not yet separated, it is reasonable for the father to have given the mother a copy or at least have shown it to her.On 16 February 2019 [W] mentioned that evening that he and [X] were at the local shop and saw the father. The shop is about a hundred metres away from the home. They saw the father and grandfather and waved to the father. The mother says she was worried about what the father might do as it was so close to the family home and says that she remained in contact with EDVOS, a family violence service that Counselling Service H referred her to. She said she was referred to SafeSteps to arrange further crisis accommodation until funding was approved for them to relocate to the Gold Coast. She says on or about March 2019 she received approval for funding which included fuel for the drive, two nights’ accommodation on the way and a week’s accommodation in a safe house in Queensland.In his affidavit the father gives inadmissible evidence about what he alleges the police told him when serving him with the Family Violence Safety Notice and when they attended the home in September 2018. When cross-examined about this the mother did not accept that the subpoenaed police records indicate that she was the one being violent and says they reflect that she was protecting herself. The father described his relationship with the mother as not being healthy or positive. He describes the mother as often being verbally abusive towards him, making derogatory comments about his mental health and also being physically abusive. He said this occurred on numerous occasions and one time in front of the children and [F]. He told the family report writer that he declined to press charges. He also told the report writer that the mother’s conduct caused him to lose his self-esteem, happiness and confidence.The father denies ever committing family violence and says the mother subjected him to family violence. In his affidavit he says the children may have been exposed to verbal arguments and then refers to [W]’s comment to Dr I of seeing the mother kick him. This is a selective rewording of what [W] said. This strikes me as the father minimising his role in problems and emphasising the mother’s.When cross-examined the mother denied ever being violent towards the father and when cross-examined about the police record referring to the father having several scratch marks she said that was when she was trying to get him off her when he was holding her down. She denied hitting him and said she was protecting herself. I am unable to determine what the police record says as it was not tendered despite the mother not making a concession during cross-examination.The mother denied that she made allegations of family violence and applied to the police for an IVO in order to exclude the father from the children’s lives. She denied obtaining Dr B’s report inappropriately and says the father gave it to her. The mother said she left for the safety of her children and conceded that she did not tell the father and the children’s schools. The mother said the children were happy to go as they were scared too. She agreed that she had not called the police previously and says this is because she was scared to. 2018 incidents The parties give very different versions of an event which occurred in 2018. The mother says one night she and the father came home from the pub and the father became angry at something he perceived she had said or done. She says she cannot remember what it was that he started yelling at her for and he was pointing his finger in her face. She said she ran out the front door and down the street screaming for help. She says the father chased her, caught up with her, grabbed her from behind with both arms, tackled her to the footpath and held her down for about a minute before they calmed down and they went back into the house. The mother said she was trembling and crying. The father’s version of events is that there was an incident where they returned home from the pub and had a disagreement. He says that the mother accused him of speaking to a woman and took off after an argument. He said he responded to her accusations and they argued. He said he put his hands up to stop her from physically putting her hands on him. He denied tackling her outside. He says the mother was crying and that she had been physically aggressive towards him. He does not explain what he means by that conclusion. He further says that when the mother returned, his parents spoke to her about it and she admitted to them that she had been the perpetrator of violence. His parents do not refer to this in their affidavits. The father does not provide any further examples in his affidavit of the mother being violent towards him, despite giving the impression that it was a regular occurrence.The father says he and the mother did have heated arguments. He refers to his affidavit where he annexes text messages where he says to the mother that he does not understand why she keeps yelling at him. The father said he does not recall accusing the mother of being unfaithful with her male friends. He also denies being controlling, telling her what to wear when they went out and becoming angry if he thought someone expressed interest in her when they were out. The father says these are fabrications in the mother’s affidavit, as he does not have any animosity towards her and wants to communicate and co-parent in the best interests of the children.The mother’s Counsel asked the father about the family report and in particular the reference at paragraph 116 where Dr I says that the mother presented as genuinely frightened of the father. He was also taken to Dr I’s interpretation of his test results where she assessed that his propensity for engaging in further physical violence is at least moderate, with the highest risk being control and domination of the mother through manipulation of the children. He says he remembers reading that and also the test results that Dr I was referring to and that she needed to clarify with Dr B about his mental health and whether there is any risk. The father was then asked about the comments by Dr I in the family report where she says that the children’s reports contained common themes about the father’s escalating irritability and anger, being less and less available to them in the lead up to the final separation and being exposed to a high level of verbal violence by him against the mother. He agreed that he was concerned when he read that and it was concerning that Dr I said that, even though she felt there had been coercion of the children. The father referred to coercion a couple of times and what I interpreted that to mean was the mother coaching the children. He accepts that it would be very concerning if the children see him as irritable, angry and not available to them but does not accept that that was the case. He says that Dr I has not been able to get a true reading of what the children are actually feeling because they have been isolated and coerced by the mother. The father says the children have not been feeling that way when they have spent time together and communicated in recent months, and says those communications have been positive and valuable to them. Of course most of that communication was via Skype, a few visits with his mother supervising, and with not all of the children being involved. He says when the children are not influenced, they enjoy spending time with him.

Ratio Decidendi

Legal Principle Established

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