Ostell & Ostell

Case [2023] FedCFamC1F 375

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ostell & Ostell [2023] FedCFamC1F 375

File number(s): MLC 12242 of 2018
Judgment of: MCNAB J
Date of judgment: 19 May 2023
Catchwords: FAMILY LAW - PARENTING – Where the mother has relocated to Western Australia and the children haven’t seen their father in two years – Where there are allegations of family violence – Where there are allegations that the father is actively seeking to undermine the children’s relationship with the mother – Where there is an order for no time and no contact between the children and the father – Where the father seeks for the children to be relocated to Melbourne and live in his primary care – Where the oldest child has expressed clear wishes to live with the father – Where the family report writer indicates the children’s wishes should not be given weight as they have been unduly influenced by the father 
Legislation:  Family Law Act 1975 (Cth) s4, s4AB, s60B, s60CC s61DA
Cases cited:

A v A (1998) FLC 92-800

B and B (1993) FLC 92-357

Bant & Clayton [2019] FamCAFC 198

Betros and Betros [2017] FamCAFC 90

Blinko & Blinko [2015] FamCAFC 146

Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5

Germain & Germain [2017] FCCA 1980

Isles & Nelissen [2022] FedCFamC1A 97

Johnson and Page [2007] FamCA 1235

M v M (1988) 166 CLR 69

Ostell & Ostell [2021] FamCA 451

R & C [1993] FamCA 62

Slater & Light [2013] FamCAFC 4

Stott & Holgar [2017] FamCAFC 152

Truman v Truman (2008) 38 Fam LR 614

Division: Division 1 First Instance
Number of paragraphs: 169
Date of hearing: 11 – 13 April 2023
Place: Melbourne
Counsel for the Applicant: Ms Taylor
Solicitor for the Applicant: Ambrose Kampen
Counsel for the Respondent: Mr Scriva
Solicitor for the Respondent: Pentana Santon Lawyers
Counsel for the Independent Children's Lawyer: Mr Eidelson
Solicitor for the Independent Children's Lawyer: Trapski Family Law

ORDERS

MLC 12242 of 2018

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

MS OSTELL

Applicant
AND:

MR OSTELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCNAB J

DATE OF ORDER:

19 MAY 2023

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The Mother have sole parental responsibility for the children X born 2009 and Y born 2011 (“the children”).

3.The children live with the Mother.

4.The children shall spend supervised time with the Father on four (4) occasions in each calendar year in Western Australia for up to six (6) hours at the Father’s expense and at such dates and reasonable times as can be facilitated by the professional supervisor.

5.For the purposes of paragraph 4 of these Orders, the Mother via her Solicitors shall nominate the name of three (3) professional supervisors and the father shall choose one (1) of the three (3) professional supervisors and advise the Mother’s Solicitor of his nomination. 

6.The Mother be at liberty to provide the…

Continue reading Ostell & Ostell

Sign in free to access the full text

Details
AGLC
Ostell & Ostell [2023] FedCFamC1F 375
Case
[2023] FedCFamC1F 375
Decision Date

CaseChat Overview and Summary

In the matter of Ostell & Ostell, the court was called upon to determine the best interests of the children in the context of an ongoing dispute between the parents, particularly focusing on the father's allegations of family violence and his efforts to undermine the mother's role as a parent. The case involved complex issues relating to decision-making, time spent with the children, communication, and the capacity of each parent to meet the children's needs. The father had been accused of perpetrating family violence and had been assessed by the Department of Families, Fairness and Housing (DFFH) as responsible for harm in relation to the emotional impact on the children. The mother alleged ongoing coercive and controlling behaviour by the father both during and after their separation.

The court was tasked with deciding the best interests of the children, considering the statutory framework under section 60CC of the Family Law Act 1975, which includes factors such as the child's need to maintain a meaningful relationship with both parents, the child's views, and the capacity of each parent to provide for the child's needs. The court examined the parents' conduct post-separation, the father's alleged family violence, and his efforts to undermine the mother. It also considered the children's relationship with each parent and their need for stability and emotional support. The court found that the father's actions had led to the children becoming estranged from the mother, and that previous attempts at compromise had not worked in the children's best interests.

The court concluded that the father's conduct, including his engagement in family violence and his attempts to undermine the mother, had placed the children in a difficult position. The court found that the father had not fulfilled his obligations to maintain the children and had failed to provide for their emotional and intellectual needs. The court also found that the mother had consistently sought to maintain a relationship between the children and the father, despite the challenges. In light of these findings, the court ordered that the children remain in the sole care of the mother, with supervised access for the father. The court emphasised that this decision was made in the best interests of the children, given the circumstances presented.

The court made final orders that the children remain in the sole care of the mother, with supervised access for the father, and that the father's access be subject to certain conditions to ensure the safety and well-being of the children. The court also noted that ongoing monitoring and support would be necessary to facilitate a healthy relationship between the children and the father, while protecting the children from further harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The ICL in this matter relies on the following:(1)Family Report of Ms E filed 11 January 2023(2)DFFH s 67Z Response dated 14 April 2022, 28 April 2021 and 18 June 2021BACKGROUND The parties commenced a relationship in 2002, married in 2004, and separated in October 2015. The mother is currently working part time in the health sector whilst studying. The father works part time as a manager of H Company, a business which is based in J Town, Victoria. The mother alleges that she suffered coercive and controlling family violence perpetrated by the father during the relationship, and continuing post separation. The father denies these allegations. Initially upon separation, the children resided with the mother and spent time with the father as negotiated between the parties from 2015 to 2018. There is no evidence about the specific arrangement during that period. In about October 2018, X reportedly refused to return to the mother’s care, and the mother initiated proceedings in the Federal Circuit Court. On 19 November 2018, DFFH became involved and issued a protection application in the Children’s Court, and received a Children’s Court Report on 10 December 2018. The father was assessed “as responsible for harm in relation to perpetrating family violence, the emotional impact it was having on the children, and [Mr Ostell] taking no responsibility for his ongoing behaviours”. The father submits that this report was inaccurate and provided a scathing opinion of himself. He argues that all subsequent reports were based on this first report to a significant extent. This report of the DFFH has been tendered into evidence. In late 2018, the mother applied for and obtained an IVO against the father which named herself and the children as affected family members. She describes the conduct giving rise to the IVO in her trial affidavit from [60], all of which is denied by the father. In late 2018, the Children’s Court of Victoria made orders permitting the father to spend supervised time with the children three times each week, which continued for a period of 18 months. The matter then was withdrawn from the Children’s Court in early 2020 and was filed in the Federal Circuit Court. However, the DFFH remained involved. Ms B provided a Family Report dated 14 July 2020, which made recommendations that the children spend unsupervised time each Saturday with the father from 9am to 7pm. If this time went smoothly for six months, she recommended the children commence spending time each alternate weekend from after school Friday to 5pm on Sunday, and gradually increase this arrangement. Thereafter unsupervised time commenced on 11 August 2020 following the orders made by consent by Judge Stewart on the basis that the father gave an undertaking that he would not commit family violence, that he would follow the orders, not remove the children from the mother’s care, and the paternal grandparents would not interfere. The children were not returned to the mother under these arrangements, and the father alleges this is because the children refused. Orders were made on 17 March 2021 that the father return the children to the mother. When the children were not returned, further orders were made on 19 March 2021 that the children be returned to the mother and spend no time with and have no communication with the father.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The relationship between the children and each of the parents has been somewhat tumultuous since separation for the reasons outlined. The father's parents clearly have had a significant role in looking after the children when the father was away working in the period when they were living with the father, and they feature throughout this litigation as people who strongly identify with their son's position and are deeply opposed to the mother's position. I have no doubt that they have a strong and loving relationship with the children and the present loss of that connection has had an impact on them. Issues relating to the parents – decision making, time spent with the children, fulfilled obligations, attitude, capacity and exercise of responsibility:·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; ·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents. Prior to separation, each of the parents have been involved and participated in making long term decisions in relation to the children and have also spent time with, and communicated with the children. Post separation, each party's capacity or ability to participate in making decisions has been affected by the arrangements as to where the children are living. The children have been living in the mother’s sole care since June 2021 and she has had sole parental responsibility pursuant to interim orders made on 21 June 2021. Since that time, the mother has been involved in the decision-making regarding enrolling the children in school and extracurricular activities. Since June 2021, the father and X have found ways to communicate, and I expect because of the strength of the father's convictions, the father will continue to find ways to do so in breach of the orders of the court. Evidence was given by the father that he is paying child support of $108 per week. The mother has given evidence that the father is assessed to pay child support for the children of $196.67 per month, and that he currently has a child support debt of $9,353.10. Because of the particular arrangements entered into by the father, in relation to the structure of the business that he operates, he is assessed to pay minimal child support. In my view, the father is not fulfilling his obligation to maintain the children. Prior to separation both parents were close to the children. The mother gave evidence that X was very close with his father growing up. Unfortunately, since the dissolution of the relationship, the father has been unable to provide for the emotional and intellectual needs for the children. This is the principal reason why he lacks capacity to co-parent, and in turn provide for the emotional needs of the children.

Ratio Decidendi

Legal Principle Established

In Slater & Light [2013] FamCAFC 4, May, Strickland & Forrest JJ endorsed the following statement by the Hon John Fogarty who, writing extra-judicially, (later endorsed by another Full Court in Johnson and Page [2007] FamCA 1235) said:(1)The decisive issue is and always remains the best interests of that child. All other issues are subservient;(2)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable;(3)Where past abuse of a child is alleged, it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies;(4)The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, it does not impede reliance upon those circumstances in determining whether there is an unacceptable risk;(5)The concentration in these cases should normally be upon the question of whether there is an unacceptable risk to the child;(6)The onus of proof in reaching that conclusion is the ordinary civil standard; and(7)The components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. CONSIDERATION The proposals put by each party and the evidence relied upon stands in stark contrast. It was acknowledged by each party and Ms E that if one party’s proposal succeeds, it is likely to lead to the other parent not spending time with the children. I accept that the father has engaged in family violence and he has worked consistently to undermine the mother as a parent, and to turn the children away from the mother. Attempts by the mother as shown by her consent to the orders which provided for the children to spend time with the father in 2020 have not worked to the benefit of the children, and have led to a situation with the children becoming estranged from the mother in July 2021. Compromised positions allowing the children to spend substantial time with the father have not worked to the benefit of the children. There is nothing arising from the father’s trial affidavit or his oral evidence before the court that gives any confidence that he has any interest in the mother maintaining a meaningful relationship with the children. On the other hand, the evidence of the mother and the evidence of her attitude throughout the events forming the narrative of this proceeding is one where she would like the father to be able to have a relationship with the children, but has no confidence that he has the capacity to enable that to happen without her relationship being substantially undermined. As was the case before a SJR, the court is placed in the invidious position of making orders that may have significant detriment for the children, but I must select the best of a bad set of options. The fact that the court is in this position is as a direct result of the conduct of the father in relation to the mother.