Federal Circuit and Family Court of Australia
(DIVISION 1)
Pelham & Jupp [2022] FedCFamC1F 879
File number(s): ADC 1987 of 2020 Judgment of: BERMAN J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – CHILDREN – Parental Responsibility – Where each party seeks an order for sole parental responsibility – Where the ICL initially promoted an order for equal shared parental responsibility – Where at the conclusion of the trial the ICL held no confidence that the parties could communicate effectively in relation to major decisions – Where there is merit in the parties retaining equal shared parental responsibility for health and education – Orders.
FAMILY LAW – CHILDREN – With who a child lives with and spends time with – Best interests of the children – Where the children spent time with the respondent until 2020 – Where the applicant made allegations that the respondent sexually abused the children and thereafter ceased time spending – Where the applicant does not support a restoration of a relationship between the children and the respondent – Where the proposal of the applicant would result in there being no effective relationship between the children and the respondent – Where the evidence does not permit a finding of sexual abuse or that the respondent presents as an unacceptable risk to the children – Where the Court finds that the applicant presents as a risk to the children by intentionally manipulating evidence for the purpose of severing or significantly restricting, the children’s relationship with the respondent – Where the ICL does not consider that the applicant can protect the children from her view of the respondent – Where the ICL promotes orders that reverse the primary care arrangements – Where the respondent seeks that the children live in his primary care if the Court finds that the applicant has fabricated the allegations of sexual abuse – Consideration on the effect of separating the children from either of the parties or the person with whom the children have been living with – Orders.
FAMILY LAW – PROPERTY – De facto relationship – Where the parties are not agreed as to the length of the relationship – Where the applicant contends that the relationship was 13 years and the respondent contends that it was 5 years – Where the respondent held significant assets prior to the commencement of the relationship – Where the respondent made significant financial contributions during a period of separation – Where the respondent has the capacity to earn significantly greater income than the applicant – Orders.
FAMILY LAW – PROPERTY – Superannuation – Where the respondent held a significant superannuation interest at the commencement of cohabitation – Consideration of employer contribution component – Where the applicant seeks an equalisation of the parties’ superannuation – Where the respondent seeks to allocate to the respondent a base amount of $100,000 – Where a 60/40 adjustment is ordered.Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 69ZT,…
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CaseChat Overview and Summary
The case of Pelham & Jupp was heard in the Family Court of Australia. The matter involved a dispute between the applicant and the respondent concerning the care, control, and welfare of their two children. The applicant sought various parenting orders, including equal shared parental responsibility, an increase in the respondent’s time with the children, shared custody during school holidays and special occasions, and an injunction to prevent the respondent from treating the children with medication without medical supervision. The respondent opposed these orders, asserting that the applicant had fabricated allegations of family violence and sexual abuse.
The legal issues before the court were whether the respondent posed a risk to the children and, if so, what orders should be made to protect the children while allowing the respondent to maintain a relationship with them. The court had to determine the credibility of the allegations made by the applicant, assess the risk posed by the respondent, and decide on the appropriate parenting orders that would best serve the children's interests. The court also considered whether the provisions of the Evidence Act 1995 should apply to certain allegations made by the applicant.
The court found that the allegations of family violence and sexual abuse by the respondent were credible, and the respondent posed a significant risk to the children. The court noted the applicant’s hypervigilance and concern for the children’s safety, as well as the respondent’s history of infidelity, inappropriate use of medication, and facilitation of the children’s contact with a pet dog that had bitten one of the children. The court applied the principles of s 60CC of the Family Law Act 1975, focusing on the benefit to the children of having a meaningful relationship with both parents and the need to protect them from harm.
After considering the evidence and the submissions from both parties, the court decided that the children should remain in the primary care of the applicant but that the respondent’s time with the children should increase significantly. The court proposed a phased approach to increasing the respondent’s time, starting with an overnight stay each Saturday and eventually leading to a three-night block of time each alternate weekend. The court also ordered that the children spend half of each school holiday with each parent and that they continue attending their current school.
In conclusion, the court made orders that reflected a cautious approach to increasing the respondent’s time with the children, balancing the need for safety with the importance of maintaining a relationship between the children and their father. The court emphasized the need for ongoing assessment and the potential for further increases in the respondent’s time as the children grew older and more capable of managing their relationship with their father.
The legal issues before the court were whether the respondent posed a risk to the children and, if so, what orders should be made to protect the children while allowing the respondent to maintain a relationship with them. The court had to determine the credibility of the allegations made by the applicant, assess the risk posed by the respondent, and decide on the appropriate parenting orders that would best serve the children's interests. The court also considered whether the provisions of the Evidence Act 1995 should apply to certain allegations made by the applicant.
The court found that the allegations of family violence and sexual abuse by the respondent were credible, and the respondent posed a significant risk to the children. The court noted the applicant’s hypervigilance and concern for the children’s safety, as well as the respondent’s history of infidelity, inappropriate use of medication, and facilitation of the children’s contact with a pet dog that had bitten one of the children. The court applied the principles of s 60CC of the Family Law Act 1975, focusing on the benefit to the children of having a meaningful relationship with both parents and the need to protect them from harm.
After considering the evidence and the submissions from both parties, the court decided that the children should remain in the primary care of the applicant but that the respondent’s time with the children should increase significantly. The court proposed a phased approach to increasing the respondent’s time, starting with an overnight stay each Saturday and eventually leading to a three-night block of time each alternate weekend. The court also ordered that the children spend half of each school holiday with each parent and that they continue attending their current school.
In conclusion, the court made orders that reflected a cautious approach to increasing the respondent’s time with the children, balancing the need for safety with the importance of maintaining a relationship between the children and their father. The court emphasized the need for ongoing assessment and the potential for further increases in the respondent’s time as the children grew older and more capable of managing their relationship with their father.
Orders
Orders of the court
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Background
Background to the litigation
The ICL sought the following orders as set out at paragraph 7 of the case outline document:-a. Equal shared parental responsibility;b.A graduated increase in the father’s time so that by the time both children attend school the children spend each alternate weekend, from end of school or 3pm Friday until commencement of school or 9am on Monday with the children spending an additional overnight with the father in the intervening week on a weeknight;c.The children spend one half of school holidays with each parent and special occasions to be shared; and d.An injunction restraining the father from [supplying] medication for or treating the children himself – without the direction of the children’s nominated General Practitioner or Specialist.Background The applicant was born in 1976 and is now aged 46 years. The respondent was born in 1973 and is now aged 49 years. The applicant maintains employment on a casual basis as a health professional. The respondent is employed as a medical professional. The respondent was raised in Victoria. He commenced a relationship with Ms EE in 1993. At the time, the respondent was a student but also working part-time as an allied health professional. Ms EE was a health professional. In 1997, the respondent was charged with transmitting objectionable material and with knowingly possessing child pornography between August 1997 and December 1997. The charge came about as a result of Victoria Police attending the respondent’s home in December 1997 and removing and taking possession of his computer. The basis of the charge arose from the information discovered by police following an inspection of the respondent’s computer. The charge was heard in the Magistrates Court in 1998. The respondent pleaded guilty and without a conviction being recorded, was required to enter into a good behaviour bond for a period of two years together with the payment of a fine in the sum of $2,000. The respondent and Ms EE moved to Adelaide in 1998. In or about 2003, the respondent and Ms EE purchased the property at Q Street, Suburb R (“the Suburb R property”). The respondent and Ms EE separated in 2005. She remains registered as a joint proprietor of the Suburb R property. Neither the respondent nor Ms EE brought a claim for settlement of property. The respondent contends that he does not have any agreement with Ms EE in respect of her interest and neither he, nor Ms EE, have brought any claim for settlement of property. The applicant and the respondent met in 2005. At that time, the respondent was employed as a medical professional and the applicant as a health professional. The parties met as a result of their shared employment in Adelaide. The respondent’s father died in 2006. Following a challenge to his father’s will, the respondent reached a resolution with potential beneficiaries who had a claim on his father’s estate and following the payment of a settlement sum, the respondent now holds an equitable interest in a farming property in Victoria near FF Town (“the Victorian farm”). Even though the respondent does not appear as the registered proprietor of the Victorian farm, he concedes that it should be brought to account in the proceedings at its full agreed value of $250,000.
Evidence
Evidence Before The Court
As at the date of trial, the respondent is subject to a Child Support Assessment although there remains a contention as to the extent of the outstanding arrears and the amount being collected by the Child Support Agency (“CSA”) as opposed to the amount being debited.The evidence At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). Whilst neither party spoke against the application of the provisions of 69ZT of the Act, I considered that the principles pursuant to s 69ZN of the Act, would be better served by the application of the provisions of the Evidence Act. It is integral to the applicant’s case that the respondent poses a risk to the children, arising out of the counts of the purported disclosures by the children that he is a perpetrator of family violence and further, that he presents as a risk to the children by reason of the following:[1]a. the supply and use of medication to the children,b. his failure to properly secure the children in vehicles while in the care,c. his illustrated attitude to leaving the children unattended in vehicles andd.his ongoing facilitation of the children’s contact with his pet dog who has bitten X on the face on three occasions.[1] Respondent’s Case Outline filed 21 February 2022, page 13. The applicant has pursued criminal proceedings against the respondent and there is an open and ongoing CC Association investigation. I consider that the circumstances are exceptional and I have had regard to the provisions of s 69ZT(3) of the Act. In particular, a relevant matter arises from the orders that the applicant seeks namely, that the child should live with her and only spend time with the respondent under supervision. As discussed, the likely result of such an order, is that the respondent will spend no time with the children and there would be no possibility of him maintaining a meaningful relationship with them. Accordingly, I consider that the provisions of the Evidence Act should apply to the following matters:- (1)The applicant’s allegation that the respondent has sexually abused the children.(2)The applicant’s allegation that the respondent inappropriately uses and/or supplies prescription medication.(3)That the respondent has engaged in sexual exploitation or the accessing, use or distribution of child exploitation material.The applicant As at the date of trial, X was aged 6 years and Y was aged 4 years. X attends P School and Y has now started at the pre-school. Both children are on the same campus. The applicant acknowledged that whilst X struggled with behaviour and other issues in 2021, this year he has not displayed any problematic behaviours. The applicant gave evidence that she remained concerned as to the respondent’s history of infidelity, his inappropriate use of medication and sexual abuse allegations. The applicant remained convinced that the respondent had sexually abused the children and accordingly, had obtained information from the Director of the pre-school aimed at assisting children to identify what would make them feel safe. In addition, the applicant took X to see a counsellor in early 2020. It appears that the focus of the therapeutic intervention was directed to the potential consequence of a child who has been the victim of sexual abuse. The applicant agreed that the allegations of sexual abuse were predominantly directed to Y and not X.
Decision
Reasons for decision
A similar consideration applies to the children’s ongoing education. The retention of the children at their current school is supported by each of the parties although, there is some uncertainty as to where the applicant will reside when she vacates the Suburb R property. There is good reason for the parties to explore an agreed outcome as to where the children will continue their education if it is not to be at their current school.Conclusion I propose that the children remain in the primary care of the applicant for the reasons expressed. I consider that the evidence of Ms DD supports a significant increase in the time that the children spend with the respondent. The recommendation is that following Y’s fourth birthday, the respondent’s time increase to an overnight each Saturday which could then increase to two nights during school holidays when Y commences reception. As and from year one, it is proposed that the children’s time with the respondent increase to Friday through to Sunday each alternate weekend and then a further increase from the conclusion of school Friday to the commencement of school on Monday, representing three nights per fortnight. The cautious approach adopted by the Family Report writer, is predicated upon the applicant’s hypervigilance and the consideration that overnight time may well have a negative impact on the applicant which she would then transmit to the children. Ms DD considers that time should be extended as the children develop a greater sense of agency. Given the evidence as presented, the concern of Ms DD is not that the children would be unable to cope with a significant change in their circumstances represented by them spending more time with the respondent but rather, out of difference to the applicant’s potential for hypervigilance. The evidence supports a finding that the children’s interests will be best served by a rapid transition to more extensive time spent with the respondent. Such an outcome is supported by the ICL even though I have fallen short of accepting the submission of the ICL for a change in the children’s primary care. X is currently seven years of age and Y is four years of age. I propose to extend the time that the children spend with the respondent from Friday at the conclusion of school or pre-school to the commencement of school or pre-school on the following Monday and each alternate week thereafter, together with one overnight period in the intervening week from the conclusion of school or pre-school on Thursday to the commencement of school or pre-school on Friday. As and from the commencement of first term in 2023, the respondent’s time will increase to five nights a fortnight in one block. Whilst not supported by the applicant, there is merit in the orders sought by the ICL that the children should spend one half of each of the school holidays with each of the parties. I propose to order that the children continue at their current school subject to their future agreement.
Ratio Decidendi
Legal Principle Established
I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the children’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm, if applicable;(5)Have regard to the additional considerations under s 60CC(3) of the Act; and (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment. Parenting considerations The parties are not agreed as to parental responsibility. The proposal of the applicant would result in there being no effective relationship between the children and the respondent. The applicant concedes that there had been a relationship prior to the purported disclosures in 2020 but that thereafter, the risk to the children of unsupervised time spent with the respondent is unacceptable. The respondent’s proposal is that his time with the children should increase significantly and then should be reflected by the children’s care being shared. If the Court finds that the applicant has fabricated the allegations of sexual abuse, then the children should be placed in his primary care. In Bant & Clayton [2019] FLC 93-924, the Full Court considered whether the child was at risk in circumstances where the Court found that a child might suffer emotional harm if removed by the father to a foreign jurisdiction. The Full Court also needed to consider the treatment by the trial judge in the imposition of the father’s time being supervised until the child turned 18 years of age. The Full Court considered the concept of unacceptable risk as follows:-39.It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …41.As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.