Norris & Ishikawa

Case [2021] FedCFamC1F 305

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Norris & Ishikawa [2021] FedCFamC1F 305

File number(s): SYC 4494 of 2021
Judgment of: MCGUIRE J
Date of judgment: 20 December 2021
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Mother seeks review of interim parenting orders made by Senior Judicial Registrar – Orders re-instated in Part

FAMILY LAW – Collateral property issues in respect of exclusive occupation of the former matrimonial home and partial property settlement – Order made that husband reside in former matrimonial home with the children – Orders for a partial property settlement whereas wife receive $60,000 and husband receive $40,000

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA and 60CC
Cases cited:

Goode & Goode (2006) FLC 93–286

Eaby & Speelman (2015) FLC 93–654

SS & AH [2010] FamCAFC 13

Mazorski v Albright (2007) 37 Fam LR 518

Champness & Hanson [2009] FamCA 96

Division: Division 1 First Instance
Number of paragraphs: 78
Date of hearing: 10 December 2021
Place: Hobart
Counsel for the Applicant: Mr Fermanis
Solicitor for the Applicant: Phillip A Wilkins & Associates
Counsel for the Respondent: Mr Dura
Solicitor for the Respondent: Kydon Segal Legal Lawyers

ORDERS

SYC 4494 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS NORRIS

Applicant
AND:

MR ISHIKAWA

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

20 DECEMBER 2021

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1.The father, Mr Ishikawa, have sole parental responsibility for the children X born … 2009 and Y born … 2013 (‘the children').

2.That the children live with the father.

3.That the children spend time with the mother, Ms Norris, as follows:

(a)each Saturday between 10.00am and 4.00pm; and

(b)at such other times as agreed between the parents from time to time in writing.

4.That the children communicate with the mother as per the children's request but no less than once per week and unless otherwise agreed then at 7.00pm on Thursdays with the mother to telephone the children on a number to be provided by the father within 48 hours of these orders and the father to provide the children with privacy to accept the mother’s call.

5.That for the purposes of the children spending time with the mother the parents shall meet at the commencement and conclusion of such time at B Shopping Centre.

6.That each of the parents be and are hereby restrained from changing the children's place of residence to a place more than twenty (20) kilometres from C School without first having obtained the written consent of the other party or order of this Court.

7.That the parties, their servants and agents be and are hereby restrained from:

(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the children or either of them or permitting the children or either of them to remain in the presence or hearing of any other person who is engaging in such behaviour;

(b)discussing these…

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Norris & Ishikawa [2021] FedCFamC1F 305
Case
[2021] FedCFamC1F 305
Decision Date

CaseChat Overview and Summary

The case of Norris & Ishikawa was heard in the Family Court of Australia, where the primary issue was the determination of interim parenting orders for the children of the separated parents. The father argued that he could provide a more stable environment for the children due to the mother's alleged erratic behaviour and mental instability, which he claimed placed the children at risk. The mother, on the other hand, denied these allegations and argued that the father's claims were part of a conspiracy. The court had to decide on the best interests of the children, taking into account the mandatory considerations under the Family Law Act 1975.

The legal issues before the court included the assessment of the parents' capacity to provide care for the children, the impact of family violence and mental health issues on the children, and the need to protect the children from harm. The court had to weigh the untested evidence presented by both parties, including the father's allegations of the mother's delusional behaviour and the mother's pleas of not guilty to assault charges. The court also had to consider the implications of the mother's psychiatric admission and her failure to provide evidence of her current mental stability.

The court found that the father's evidence, though untested, was consistent and corroborated by members of the mother's family. The mother's allegations of a conspiracy by the father and his witnesses were not supported by any evidence. The court was concerned about the mother's mental health and the potential risk she posed to the children. Given the unresolved criminal charges against the mother and her admission to a psychiatric ward, the court concluded that it was not reasonably open to make shared care arrangements for the children. Therefore, the court ordered that the children live primarily with their father.

The final orders of the court were that the children would reside primarily with the father, with specific financial arrangements made for the former matrimonial home. The court also noted that the mother's application for exclusive occupancy of the home was contingent on the children living with her, which the court did not deem in the children's best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The implication of the father's argument is that, relative to the mother, he can provide a stable parenting model, home and support for the children in the interim where the mother’s manifested behaviour presents as placing the children at risk and that risk being an unacceptable one.BACKGROUND The parents commenced cohabitation in about 2000 and separated under the one roof on 6 March 2021. The parties and the children lived most recently at Suburb G. The mother has a child from a previous relationship, Mr L, who is 26 years of age. He gives evidence for the father in this matter. On the evidence, untested as it is, it is apparent that both parties provided care and contributed to the care and support of the children until recent events. The father is employed as a professional. The mother is currently in employment as a public servant. Given the recent COVID-19 restrictions, the evidence suggests that both parties have worked for periods from home. SJR Jenkinson made orders on 1 November 2021 after a defended interim hearing placing the children primarily into the care of the father. Since those orders the mother has been charged with two counts of assault on the father, one count of breaching an AVO, and one count of breaching bail. The events that led to these charges occurred on or about 25 November 2021 being after the orders of SJR Jenkinson and whilst this Review hearing was pending. Since the charges of assault the mother has vacated the former matrimonial home. There is scant evidence as to her living arrangements but notably she asks for an order for exclusive occupancy of the former matrimonial home if the children are to live with her in the interim.THE RELEVANT LAW The orders that I am asked to make are parenting orders and I must therefore have the best interests of the children as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’). In determining those best interests I must reference the parents' proposed orders and the probative evidence before me to the numerous mandatory consideration set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation provided at s 60B. Importantly for my consideration, the objects of the Act and the two primary considerations of s 60CC(2) offer what are often known as the “twin pillars” for the Courts consideration in parenting matters and, particularly at interim stages, being that children should have the benefit of meaningful relationships with both of their parents, but where the Court, where appropriate, must make orders which protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. The remainder of the s 60CC(3) considerations deal with more pragmatic issues such as the children's views, the capacity of the parents, the attitudes of the parents to parenting responsibilities, and matters of family violence. The application before me is one seeking interim parenting orders. Such an application proceeds by way of affidavits and submissions by Counsel. There is no opportunity for the testing of the evidence by the important tool of cross–examination. As such, where proceedings are truncated, it is often difficult for courts to make determinations of disputed fact or credit. Such is the case in the matter now before me. Despite these limitations and difficulties, the Court remains obliged to follow a course of statutory and intellectual considerations consistent with the well-known decision of the Full Court in Goode & Goode[2] where their Honours observed:[68]…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.[2] (2006) FLC 93–286.

Evidence

Evidence Before The Court

Finally, there is an issue, essentially agreed, that from a sum of $100,000 drawn down on a H Bank mortgage loan in respect of the former matrimonial home the party with whom the children live shall receive $40,000 and the other party receives $60,000 with the obvious intent that the parent who does not have the benefit of the occupancy of the former matrimonial home be better able to re accommodate themselves and potentially the children.THE EVIDENCE The mother relies on her lengthy affidavit sworn 6 December 2021. The affidavit exceeds the permissible page limit provided by the Rules[1] but no issue was taken by Mr Dura of counsel for the father.[1] The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 5.08(2). The father relies on his affidavits affirmed 3 December and 8 December 2021. He also adduces evidence on affidavit from the mother's own mother, Ms J, sworn 27 October 2021; affidavit of Ms K, the mother’s sister, sworn 20 October 2021, and an affidavit of Mr L, the mother’s adult son from a previous relationship, sworn 21 October 2021.The mother's case Counsel for the mother argues that the parties had until recently been separated under one roof whereby the children had the benefit of direct parenting by both of their parents. The mother argues that, contrary to the father's case, she does not present as any manifest risk to the children, physically or emotionally. She denies the father's assertions that she suffers a mental health condition and says that she has suffered no relevant diagnosis. The implication is of a form of conspiracy in this respect by the father and his witnesses who are members of the mother's family with whom she unfortunately has fractured relationships. Whereas the mother acknowledges that she has been and is the respondent to Apprehended Violence Order Applications (‘AVO’), alleged breaches of those orders, and the defendant in respect of charges of criminal assault, she denies the facts asserted and has entered pleas of not guilty and should therefore have the benefit of that status in respect of those unresolved issues. Significantly she says that the AVO and criminal issues are inter partes and do not involve the children. The mother concedes that she was admitted to a psychiatric ward but says that she was assessed and discharged on 26 February 2021. She says that she has no current psychiatric treatment. In summary, the implication of the mother's argument is that the father has been opportunistic and tactical in creating a situation to obtain “possession” of the children where there is no evidence of any probity to support his assertions and allegations. Whereas the mother’s initial application contemplated a relocation of herself and the children even at this interim stage, she no longer prosecutes that application before me.The father's case The father, supported by his witnesses who notably are members of the mother’s own family, asserts that the mother suffers a form of paranoia or delusional behaviour. Specifically, he says that she is an adherent to various conspiracy theories including anti-COVID-19 vaccination and the theories espoused by an organisation Qanon. He asserts that the mother’s viewpoints are irrational and compromise her ability to parent the children and expose the children to emotional risk.

Decision

Reasons for decision

These are the relevant s 60CC(2) and (3)considerations.CONCLUSIONS I stress that the evidence before me is untested and that it is not to open for me to make many of the determinations of disputed facts and credit that are urged upon me. I do know, however, that the previous situation of these parents being separated under the one roof and hence contributing within that environment to the ongoing parenting of their children is no longer available to them. Their relationship is conflictual and toxic. The children have most likely been exposed to that conflict. I know that the father has remained resident in the home with the children albeit this being a status quo of limited duration. There remain concerns in respect of the mother's mental health. I am mindful of her denials and her theories that she is the victim of a conspiracy between the father and others who are her relatives. There is, however a consistency in the evidence of the father and his witnesses as to what could be interpreted as a form of delusional conceptualising by the mother. Whilst the mother is entitled to her political and social views, matters such as the COVID-19 vaccinations could have an immediate and manifest impact on the children. I know that the mother was admitted to a psychiatric ward and that she was released. The note of her release is, to my mind, somewhat equivocal in that it states simply that she could no longer be detained presumably under a relevant mental health order of limited duration. The mother does not, however, adduce evidence before me of her mental stability. She is obviously aware of the father's assertions made before the Registrar. The failure by the mother to adduce such evidence without the reasonable explanation from her most recent treating psychiatrist opens inferences for me under the principles in Jones v Dunkel[7] that such evidence, if adduced, may not have been of assistance to the mother. In any event, at the very least, the mother's failure to bring such evidence leaves open the concerns articulated by the father, supported by his witnesses, and corroborated to a degree by the mother's admission to the psychiatric unit.[7] (1959) 101 CLR 298. Secondly, the mother has been the charged with two counts of assault, a breach of an AVO, and breach of bail. Significantly, these matters occurred after the orders of SJR Jenkinson and pending the application before me. I note that the mother has entered pleas of not guilty and may argue a form of provocation but, regardless, prima facie the mother faces criminal charges of assault which allegedly occurred in the proximity of the children. Again, at the very least, this is evidence of volatile behaviour by the mother consistent with that observed by the father and his witnesses over a period of time. Despite the limitations of this interim hearing, I maintain serious concerns in respect of the mother’s mental stability and where any regime of shared care for these children is not reasonably open to me, such that I am of the view that the children's best interests are served by living primarily with their father.

Ratio Decidendi

Legal Principle Established

Still further, the majority in SS &AH[4] said:[100]…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue[4] [2010] FamCAFC 13.CONSIDERATION It is implicit in the mother's application that the orders sought by the father would impact on her relationship with the children. This is a primary consideration where the Court is to make orders which benefit children having meaningful relationships with their parents. The term meaningful is both a “qualitative” and ''prospective” notion.[5][5] Mazorski v Albright (2007) 37 Fam LR 518. Nevertheless, and perhaps particularly so when the evidences is untested, this consideration, although a primary one, is not determinative of my consideration.[6] [6] Champness & Hanson [2009] FamCA 96. Suffice to say that the evidence before me satisfies that the children, consistent with their ages, have the benefit of established and meaningful relationships with each of their parents. This is a matter in which family violence features. Whilst noting the mother's denials and pleas of not guilty, the Court is confronted with a situation where the mother faces two counts of common assault with the father as the alleged victim but, importantly for this consideration, where the children were proximate to whatever form this dispute and its manifestations took. It is well-established and common sense that children should not be exposed to adult disputes and certainly not to instances of violence. Similarly, the mother is the recipient of at least two AVO’s taken out for the benefit and protection of the father but where she now stands accused of a breach of those orders. There is an accompanying charge of breach of bail. The mother also alleges that the father has been violent towards her and indeed her case before this Court rests on an allegation of controlling or coercive violence by the father. She says that he has orchestrated false criminal allegations against her. The children are of ages where their views and preferences will be given some weight. However, there is scant evidence before the Court of those preferences and they have not yet been elicited in the usual forum of a family report and where the children are, on the evidence before me, most likely aware of the recent conflict and toxicity between their parents. The capacity of these parents, and in particular, the mother is at the crux of this application where the father asserts bizarre behaviour and thought patterns of the mother that might be consistent with a form of a mental or emotional illness. The father's material is replete with what he says are delusional and conspiratorial revelations from the mother. For example, he says that on November 2020 the mother said:[The father] did you know that Earth is not a planet, it is a spaceship … we are all living in a spaceship”. He quotes her as of 21 December 2020 as “Do not get tested, just tell them you are self–isolating, come home. Army deployed soon. I will explain … Whatever you do don't get tested, radioactive isotope in swab, this is a cue, if you are positive u r on a database for life, read the legislation, the testing is a DNA swap, they can round you up and put u in a camp. All in legislation. You are not sick u have no symptoms.