Paddon and Tighe - [2019] FCCA 1154

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADDON & TIGHE

[2019] FCCA 1154

Catchwords:
FAMILY LAW – PARENTING – Child aged 4 – dispute about where the child should live – where the child is happy and settled in the father’s care and should remain there – dispute about the child’s time with the mother – where the mother has been convicted of assault, stalk intimidate and breaching an ADVO in respect of the father and the paternal grandmother – where the mother has two children with a former partner – where the mother has numerous convictions for stalk intimidate and breaching ADVOs in respect of that partner – where there has been violence in the mother’s home involving the mother and her children with her former partner – where one of those children was removed from the mother’s care last year by the Department of Family & Children’s Services – where there is an unacceptable risk of the child the subject of these proceedings being exposed to family violence and abuse if he spends unsupervised time with the mother – where the father proposed that the child spend supervised time with the mother on four occasions each year – where that was supported by the Independent Children’s Lawyer – order made to that effect –father to have sole parental responsibility for the child.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA

Applicant:

MR PADDON

Respondent:

MS TIGHE

File Number:

NCC 938 of 2017

Judgment of:

Judge Terry

Hearing dates:

8, 9 & 10 April 2019

Date of Last Submission:

10 April 2019

Delivered at:

Newcastle

Delivered on:

23 April 2019

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

Everingham Solomons Solicitors

The Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr Bateman

Solicitors for the Independent Children’s Lawyer:

Emalene Gemmell Family Law

ORDERS

All previous Orders are discharged.
The child [X] born 2014 (“[X]”) shall live with the father.
The father shall have sole parental responsibility for [X].
Within seven (7) days of making a decision in exercise of his parental responsibility the father is to notify the mother in writing of the decision made.
The mother shall spend time with [X] on four (4) occasions per year for two (2) hours on each occasion supervised by the Family Contact Service or such other professional supervisor or service nominated by the father from time to time and for this purpose:
(a)By 1 May 2019 and thereafter by 1 February each year, the father is to notify the mother in writing of the dates and times for supervised contact arranged by him for that year.
(b)As far as practicable, the father is to arrange such visits to be proximate to Easter, Mother’s Day, the child’s birthday and Christmas.
(c)The mother be permitted to have [U], [V] and/or [W] attend such visits.
(d)The mother be permitted to provide [X] with photos, gifts and cards during such visits and the father to ensure that such photos, gifts and cards are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paddon and Tighe

Details

AGLC: Paddon and Tighe [2019] FCCA 1154
Case: [2019] FCCA 1154
Decision Date: 23 April 2019

CaseChat Overview and Summary

This case concerned parenting orders for a child, [X], born in 2014. The dispute involved the father and the mother, and the decision was made by Judge Terry in the Family Court of Australia. The court was required to determine the living arrangements for [X], the allocation of parental responsibility, and the nature and extent of the mother's future contact with the child.

The court was tasked with considering various factors under the *Family Law Act 1975* (Cth), including the child's maturity, sex, and background, the relationship between the child and each parent, the parents' capacity to provide for the child's needs, and the likely effect of any change in circumstances. A significant aspect of the proceedings involved allegations of family violence, which the court carefully considered in its assessment of the parents' credibility and the child's best interests. The court also had to determine the appropriateness of granting the father sole parental responsibility and imposing injunctions to protect the child and the father.

Judge Terry found the mother to be an unreliable witness, particularly regarding allegations of family violence and the nature of [X]'s attachment to her. The court accepted the father's evidence concerning the alleged incidents of violence, finding the mother's accounts to be inconsistent and lacking credibility. The court was satisfied that [X] had a strong and good relationship with his father, who had been caring for him well. Conversely, while acknowledging the mother had a good relationship with [X], the court noted observations from a family report that indicated children were more engaged and happier with the father. The court expressed concern about the mother's parenting capacity, referencing allegations of alcohol consumption and her past difficulties with other children.

Consequently, the court ordered that [X] live with the father and that the father have sole parental responsibility. The mother was granted supervised time with [X] on four occasions per year, with the father responsible for arranging and funding the supervision. The court also issued injunctions restraining the mother from various actions, including attending [X]'s school without consent, attempting to contact [X] outside of the permitted arrangements, and contacting the father except via email in non-emergency situations. The father was permitted to obtain a passport for [X] and travel internationally with him at his sole discretion.

Orders

Orders of the court

All previous Orders are discharged.

The child [X] born 2014 (“[X]”) shall live with the father.

The father shall have sole parental responsibility for [X].

Within seven (7) days of making a decision in exercise of his parental responsibility the father is to notify the mother in writing of the decision made.

The mother shall spend time with [X] on four (4) occasions per year for two (2) hours on each occasion supervised by the Family Contact Service or such other professional supervisor or service nominated by the father from time to time and for this purpose:

(a) By 1 May 2019 and thereafter by 1 February each year, the father is to notify the mother in writing of the dates and times for supervised contact arranged by him for that year.

(b) As far as practicable, the father is to arrange such visits to be proximate to Easter, Mother’s Day, the child’s birthday and Christmas.

(d) The mother be permitted to provide [X] with photos, gifts and cards during such visits and the father to ensure that such photos, gifts and cards are retained and accessible to [X] unless the father deems their contents to be inappropriate.

(e) The father be responsible for the cost of such supervision.

The mother’s time with [X] shall be conditional upon the mother complying with all directions of the supervisor and/or supervising agency from time to time NOTING THAT if the Family Contact Service declines to further supervise the mother’s time with [X] then there is no obligation upon the father to nominate or arrange an alternate supervision service.

Within seven (7) days of today’s date the mother is to provide the father’s solicitor with an email address at which she can be contacted, and thereafter this email address (or such further email address as may be advised by the mother in the future) shall be used for the following:

(a) to notify the mother of any decision made by the father in exercise of his sole parental responsibility as provided for in Order 4;

(b) to notify the mother of the details for contact visits as required by Order 5(b);

(d) to inform the mother in the event of any serious illness or injury concerning [X].

Pursuant to s.68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained by injunction from:

(a) Attending any pre-school or school where [X] may from time to time attend without the prior written consent of the father;

(b) Having or attempting to have contact with [X] other than as permitted by these Orders NOTING THAT this Order does not operate to prevent the mother from greeting [X] should she see him in a public location;

(c) Removing or attempting to remove (either directly or through a third party) [X] from the care of the father or from any other person who may be supervising [X] at the father’s request;

(d) Attending or entering the any home that [X] may from time to time reside;

(e) Abusing, belittling, stalking, harassing and/or intimidating [X], the father or any other person with whom the father is in a domestic relationship;

(f) Attending any of [X]’s sporting or other extra-curricular activities save and except where she has obtained the prior written consent of the father; and

(g) Except in the case of emergency, contacting or attempting to contact the father other than via email.

The injunctions provided for in Order 8 are made for the personal protection of [X] and the father.

10.

Pursuant to s.11 of the Australian Passports Act 2005 (Cth), the father be permitted to obtain a passport, or renewal of same, with respect to the child [X] born 2014 without the consent of the mother having been obtained.

11.

[X]’s passport shall remain in the custody and control of the father.

12.

Pursuant to s.65Y of the Family Law Act 1975 (Cth) the father be permitted to travel outside the Commonwealth of Australia with [X] or permit [X] to do so at his sole discretion.

13.

The Independent Children’s Lawyer’s application for costs is dismissed.

Background

Background to the litigation

I must consider the child’s maturity, sex and background. Considering that as a separate issue will not assist me save in this regard. [X] is four years old. If he is to have a different life to [V] then he needs to be removed now from exposure to chaos and abuse. If he is not there is a very real risk that he could follow the same path as [V]. I must consider any family violence involving the child or a member of the child’s family and this is going to be a lengthy section of the judgment. The mother alleged that the father had been violent to her and she alleged two serious incidents of family violence. She alleged that in January 2013 after the parties had been at a hotel there was an incident where her nose was broken and she got two black eyes and she said that the father had caused that. She went to hospital and told them it was an accident but she said she did that because the father threatened to use a gun on her if she told them that he had injured her. The second occasion happened a few years later. The mother fractured her wrist at home and she alleged that the father caused that injury. Again she sought treatment. Again she said at the time that it was an accident but said that she lied because she was frightened of the father. The mother did not report either incident to the police at the time but in March 2017 when conflict broke out between the parties she went to the police and said that she felt it was time she reported them. The father did not admit that he had deliberately caused the mother injury and the police took no further action. I do not accept the mother’s evidence that the father deliberately injured her on either of those occasions. In relation to the broken nose incident, the father admitted that the mother had broken her nose after “falling onto his shin” but he said it was an accident and I accept his evidence. The mother gave four different versions of how the injury occurred. She told the police that the father had elbowed her in the face. In her trial affidavit she said she was on the ground and the father kicked her in the face. In an affidavit she filed earlier in the proceedings she said that the father punched her in the face. In the witness box she kept saying the father’s shin struck her nose. When I asked her to get out of the witness box and demonstrate that to me because I couldn’t quite envisage how that could have happened if she was lying on the ground as she claimed, in the course of explaining it the mother said that she had been lying on the ground but she was getting up from the ground when the father’s shin struck her in the face. She still maintained that it was deliberate. The mother was not a witness of credit and I do not accept in the light of those four completely different versions about how that incident occurred, that it involved any deliberate striking of the mother by the father. The father said that the mother sprained her wrist after she fell over a wheeled toy in the kitchen at home. He said that she had been drinking a lot of red wine on that occasion. He said that he was in another room watching TV when it happened and he heard it happen.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child. Both parents have always been keen in that regard and that consideration does not assist me. I must consider issues of financial support. The father has paid child support post-separation. Child support was not mentioned as an issue at trial. I must consider the likely effect of any change in the child’s circumstances. Both parents proposed a change. The father proposed, and I mean no criticism of him in saying this, almost a complete removal of [X]’s time with the mother, at least for 12 months. The mother proposed that [X] return to live with her or live week about. I will have to assess the likely effect of those changes on [X] after making further findings. I must consider the practical difficulty and expense of the child spending time with a parent. Practical difficulty and expense is not an issue in this case. The parents live in the same town, which is both a blessing and a problem as we discussed during the evidence, so there is no travel distance involved in the child spending time with one of his parents. There will be an expense involved with supervised time four times a year. The father said that he could pay for that, or would pay for it, so that is not a problem. If the parties had to travel to Town K (80 kms from Town E) for supervised time there would be some travel difficulty but it is only an hour away and the parties seem to travel freely within the local area. I must consider the capacity of each parent to provide for the needs of the child, including his emotional and intellectual needs. The mother has the capacity to feed and clothe [X]. The paternal grandmother was quite complimentary of her in that regard. However she has failed to properly parent her older children in many other ways and as a result I have concerns about what might happen for [X]. One of the issues raised about the mother was alcohol consumption. There were reports of her consuming a large quantity of red wine. [U] alleged that this was the case when speaking to the Department in 2017 and she repeated it to the family report writer when she saw her in October 2017. The father and the paternal grandmother also made that allegation, noting that the father lived with the mother. I think [V] might also have mentioned it, but I would have to double-check what he said when he was speaking to the Department in 2018. Those allegations cause me discomfort but it is difficult to know what to do with them because the level of the mother’s drinking was not greatly explored in cross-examination. It would not necessarily have helped if it had been because it is doubtful I would have been able to place weight on the mother’s answers but there was nothing in medical records or information about convictions or notes made by the police when they attended incidents to suggest that alcohol consumption was a massive problem for the mother.

Ratio Decidendi

Legal Principle Established

I am going to commence with the additional considerations. The first one is not helpful in this case. It is the views of the child. [X] was too young to express a view in 2017 when the parties attended the family report interviews and he is still too young to express any meaningful view about future parenting arrangements. I must consider the nature of the relationship between the child and each of his parents and any other relevant person. The mother has previously referred to the father as being a capable parent. That is inconsistent with her complaints about him at trial and she alleged that in recent times [X] had often not wanted to leave her care and that his strongest attachment was to her. There was no independent evidence of that and the mother was a profoundly unreliable witness so I cannot place any weight on that evidence. I accept that there is evidence that the mother has a good relationship with [X]. He was calm and settled in her care during the observations of the family report interviews in 2017. However the family report writer also said as follows (referring to both [X] and [V]):Overall, the children appeared to have a reasonably settled relationship with the mother, but the quality of the interaction with the father was observably different. Specifically, the children seemed to be far more engaged, and their demeanour appeared to be happier when with him.[2][2] Family Report paragraph 190 I am satisfied that [X] has a good relationship with the father. Although the mother put a different position at trial about their relationship, on a couple of occasions in her affidavit, one referring to the March 2017 period and one to the March 2019 period when she withheld [X], she mentioned that he became upset because the father had not rung him. The family report writer observed [X] and [V] to be very excited to see the father in 2017. She said as follows:Both [X] and [V] were clearly quite excited to see the father when he entered the room. They both gave him a hug. [X] became more actively engaged in the play than he had been with the mother (more laughs/giggles/dialogue) but [V] had a noticeably different presentation. He smiled constantly, talked constantly and sought the father’s attention constantly. The father and [V] appeared to have a lot in common. Without prompting [V] said that he had missed the father and had missed coming to his house and the father echoed this.[3][3] Paragraph 188 of the Family Report. The family report writer noted that at the time of the observations both [V] and [X] had not seen the father for some time and for [V] it had been a considerable period of time. I am satisfied that [X] has a strong and good relationship with his father and I do not accept the mother’s assertions that his relationship with her is stronger and better. The father is a good father. He has been caring for [X] well since I made the interim orders eight months ago. He has not changed into a different person in those eight months.