Otero & Colina

Case [2021] FedCFamC1F 215

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Otero & Colina [2021] FedCFamC1F 215

File number(s): DGC 2961 of 2015
Judgment of: HARTNETT J
Date of judgment: 24 November 2021
Catchwords:

FAMILY LAW – CHILDREN – MAGELLAN LIST – Where the child currently spends no time and has no communication with the father – Where the child is now aged nine years – Where the child lives with the mother and maternal grandparents – Where the parents separated, reconciled and separated again – Whether the father poses an unacceptable risk to the child – Where there are  allegations made by the mother that the father sexually abused the child – Where the mother does not support a relationship between the father and the child – Where there is no unacceptable risk of harm or abuse for the child in the care of the father – Where the father consents to orders that he attend upon a psychologist for cognitive behavioural therapy and dialectical behaviour therapy – Orders made for the father to attend a psychologist.

FAMILY LAW – CHILDREN – Best interests – Whether the child should spend supervised time and/or communicate with the father – where the mother seeks that no orders are made for spend time – Where the father seeks supervised time at a contact service or private supervisor – Where the father also seeks orders that the child engage in therapeutic counselling prior to recommencing spend time with the father – Orders made for the child to attend therapeutic counselling for a period of three months prior to the child recommencing supervised time with the father for a period of eighteen months – Where the parties agree that the mother should have sole parental responsibility – Where the parties both seek that the child live with the mother – Orders made by consent for the mother to have sole parental responsibility and for the child to live with the mother.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth) s 39

Cases cited:

Bell & Nahos [2016] FamCAFC 244

Betros & Betros [2017] FamCAFC 90

Blinko & Blinko [2015] FamCAC 146

Jurchenko & Foster (2014) FC 93-598

M & M (1988) 166 CLR 69

Mazorski & Albright (2007) 37 Fam LR 518

Mulvany & Lane (2009) FLC 93-404

Olsen & Rigby [2020] FamCA 885

Russell & Close [1993] FamCA 62

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:  Division 1 First Instance
Place: Melbourne
Number of paragraphs: 175
Date of hearing: 3-7 May 2021  
Counsel for the Applicant: Ms Agresta
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Mr Chislett
Solicitor for the Respondent: Ressan Lawyers
Advocate for the Independent Children's Lawyer: Mr Taghdir
Solicitor for the Independent Children's Lawyer: Taft Lawyers

ORDERS

DGC 2961 of 2015

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Otero & Colina [2021] FedCFamC1F 215
Case
[2021] FedCFamC1F 215
Decision Date

CaseChat Overview and Summary

In the case of Otero & Colina, the father sought to have sole parental responsibility for the child born from his relationship with the mother. The mother, who had primary care of the child, opposed the father’s application and raised concerns about the father’s parenting capacity. The court had to determine the appropriate arrangements for the child’s care, considering the welfare of the child as the paramount consideration. The primary legal issue was whether there was an unacceptable risk of harm to the child if the father were to have sole parental responsibility. This required the court to assess the evidence regarding the father’s past behavior, allegations of family violence, and the overall welfare of the child.

The court examined the evidence presented by both parties, including the allegations of physical and sexual abuse made by the mother and denied by the father, as well as the father’s criminal history and past incidents of substance abuse and violence. The court also considered the recommendations of the Department of Human Services report and the observations of the Family Report. The court concluded that the evidence did not support an unacceptable risk of harm to the child if the father were to have sole parental responsibility, provided certain conditions were met. The court found that the father could provide a stable and supportive environment for the child, and that the mother’s concerns, while serious, did not rise to the level of establishing an unacceptable risk of harm.

Based on the evidence and the welfare considerations, the court ordered that the mother have sole parental responsibility for the child, with specific conditions regarding the father’s involvement in the child’s health and education. The court also ordered that the father be kept informed about the child’s health and schooling, and that he have regular supervised contact with the child. The court’s decision was based on a careful assessment of the evidence and a determination that the welfare of the child would be best served by the mother having sole parental responsibility with the father’s involvement under the specified conditions.

Orders

Orders of the court

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Background

Background to the litigation

It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[2] [2] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].BACKGROUND The mother, born in 1985, is aged 36 years. The mother works part-time in hospitality. She is in receipt of Centrelink benefits. The mother has a diploma in business administration, which she obtained after the completion of year 10. Before becoming pregnant with the child, the mother worked in administration for a period of five years. The mother is undertaking some studies and otherwise is fully engaged in the primary care of the child. The mother has not re-partnered. The father, born in 1970, is aged 51 years. The father is not currently employed and is in receipt of Centrelink benefits. He previously worked as a tradesperson. Between 1993 and 1998 the father worked for Q Company where he sustained an injury in a machinery accident which led to ongoing spinal issues. The father was diagnosed with a disability between 2002 and 2003 and is in receipt of a disability pension. He resides in rental accommodation. He has not re-partnered. The father was previously married to Ms R. They had two children together born in 1995 and 1997. The parties separated in 1997, reconciling briefly before the father discovered that Ms R was having an affair with his best friend. The father decided to move away and he has not seen the children from this relationship since in or around 1999 or 2000. The parties commenced their relationship on or about 7 November 2003. They met at S Company in Suburb T where they were both employees. The mother was 18 years and 8 months of age at the time and the father was 33 years of age. The mother claimed that this was her first relationship. The parties’ cohabitation commenced in or about late 2003 or early 2004. The parties did not marry. In 2012 the child was born. The parties first separated in December 2014 for a period of some two weeks. In this time police made an application for an Intervention Order (“IVO”) on behalf of the mother. The parties reconciled. The parties next separated on or about 19 May 2015 after a cohabitation period of approximately 11 and a half years. The mother and child, then aged 2 years and 7 months approximately, went to live with the maternal grandparents. The father commenced proceedings in the then Federal Circuit Court of Australia (“FCC”) at Dandenong on 21 September 2015. The mother made allegations of family violence and raised the issue of the father’s parenting capacity. No allegations of sexual abuse by the father were made. Initially, pursuant to orders made in the FCC on 14 December 2015 and then subsequently on 4 February 2016, the child spent supervised time with the father from January to August 2016. Thereafter, the child’s time with the father became unsupervised and progressed to include overnight time for one night each week.

Evidence

Evidence Before The Court

On 27 March 2020, the court made orders that: the trial date be vacated; the DHHS provide a s 69ZW of the Family Law Act 1975 (“the Act”) report as a matter of urgency; for the parties to attend upon a Family Dispute Resolution Service before 18 May 2020; and that s 102NA(2) of the Act applied with the father not permitted to personally cross-examine the mother. THE EVIDENCE The mother and the father Both parties are of European background. The mother is the second child of her parents, and has two brothers with whom she maintains a relationship. The maternal grandparents have a close relationship with the child, and have housed the child and the mother as a consequence of the parties’ separations. The father’s family upbringing was marked with tragedy and loss. His father, with whom he was close, died in 1980. His death was described as a suicide, although the father claims that it was a murder. The father’s mother, following her husband’s death, began a relationship with a family member. When she attempted to end the relationship, the male shot her and killed himself in a murder-suicide. Following the death of his mother, the father became a ward of the State and was placed in the care of the Catholic Church. The father was not on his evidence sexually abused, but reported that he ran away to avoid the threat of abuse. The father’s older brother died by suicide in 2007, a loss felt keenly by the father. According to the Family Report of Ms J dated 27 July 2016, and as conceded by the father, the Victoria Police file indicates that the father was charged with numerous offences during the 1990s and 2000s, which included: (a)using threatening words, including making a threat to kill in 2004;(b)theft of a motor vehicle in 2002; (c)possession of and cultivating cannabis in 1987, 1988 and 1999; (d)use of indecent language in 1990 and 1994; and (e)various traffic offences. The mother has made, in part, retrospective allegations of abuse of her, including, physical abuse, and sexual abuse of the child, as detailed in her affidavit evidence of 24 June 2019. The father denied these claims, but acknowledged mutual verbal conflict and abuse by both parties, one toward the other. The mother admitted in cross-examination that she has verbally abused the father. On 23 February 2009, as discussed in paragraph 71 of these reasons, the father was admitted to Z Hospital psychiatric inpatient unit for “a few hours” after being abusive towards the mother’s parents and speaking of suicide whilst intoxicated. On 17 October 2009, a report of family violence was made by an unknown source to police in relation to a verbal argument between the parties. The police attended at the parties’ home. Both were found to be substance affected, and there were no concerns regarding the safety of either party. The mother makes numerous allegations as to the father’s behaviour, which the father denies save he admits to being disapproving of the mother’s brother and having an issue with the maternal grandfather such that he wanted to limit the child’s contact with him, between 2011 and 2013, including that, the father would: ·approach her from behind whilst arguing and leave bruises on her ribs;·corner her in the “back section of the kitchen”; ·restrict her from going to the shops or leaving the house; ·tell her that she would go missing and no one would find her; ·control all aspects of her pregnancy and afterwards, including feeding and bathing the child; ·get angry with her because she could not produce breast milk and they would have to buy formula; ·not permit her to go to mother’s group;·not allow the maternal grandparents to babysit the child; and ·deny the mother’s brother from having a relationship with the child.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In this proceeding, the parties consented to an order being made by the court for the mother to have sole parental responsibility provided that the mother kept the father informed as to the child’s health, and the child’s schooling. The evidence supports that position. CONSIDERATION The court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[56] In M & M (1988) 166 CLR 69 (“M & M”), the High Court said:[57] ...The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access... [56] Ibid s 60CC(2)(b). [57] M & M (1988) 166 CLR 69 at [24] In M & M, the High Court went on to consider what magnitude of risk would justify a court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk of sexual abuse to the child:[58] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. [58] Ibid at [25]. As summarised by McClelland DCJ:[59] Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N & S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96]. [59] Olsen & Rigby [2020] FamCA 885 at [151].