Pidoux & Magnin

Case [2021] FamCA 481

FAMILY COURT OF AUSTRALIA

Pidoux & Magnin [2021] FamCA 481

File number(s): SYC 4645 of 2011
Judgment of: ALTOBELLI J
Date of judgment: 7 July 2021
Catchwords: FAMILY LAW – PARENTING – where there are allegations of family violence by each parent against the other – where the child has been exposed to alcohol-related violence – where clear views expressed by 14 year old child – consideration of best interest principles – final parenting orders made.   
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA
Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

In the Marriage of Archbold (1984) FLC 91-532; [1984] FamCA 10

M v M (2000) FLC 93-006; [1998] FamCA 1742

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

WK v SR (1997) FLC 92-787; [1997] FamCA 57
Number of paragraphs: 149
Date of last submission/s: 7 April 2021
Date of hearing: 6-7 April 2021
Place: Sydney
Counsel for the Applicant: Ms Spain
Solicitor for the Applicant: Somerville Legal
The Respondent: In Person
Solicitor Advocate for the Independent Children's Lawyer: Ms Callander
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 4645 of 2011
BETWEEN:

MR PIDOUX

Applicant
AND:

MS MAGNIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The father have sole parental responsibility for the child X born … 2007.

3.Within seven days of making any decision as to the long-term care, welfare and development of X, the father is to inform the mother in writing of such decision.

4.X live with the father.

5.In the event that X expresses a wish to spend time with the mother:

(a)Within seven days or such earlier time, the father shall do all such acts and things and sign all such documents as may be required to register with B contact centre, or such other service as agreed between the parents, or failing agreement, such other service as nominated by the Independent Children’s Lawyer, and invite the mother in writing to undertake registration with that service;

(b)The mother shall meet the cost of such supervision service;

(c)The time will occur in accordance with X’s wishes as to matters such as time, place, and activity undertaken, and otherwise in consultation with any counsellor or therapist X may be attending upon at the time;

(d)For a period of six months from the commencement of X spending time with the mother, such time shall be two hours per fortnight supervised by B contact centre with such visits being supervised in the community; and

(e)Such other times as agreed between X and the mother.

6.X communicate with her mother by telephone, Skype or other electronic…

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Pidoux & Magnin [2021] FamCA 481
Case
[2021] FamCA 481
Decision Date

CaseChat Overview and Summary

This case involved Mr. Pidoux (Applicant) and Ms. Magnin (Respondent) concerning parenting orders for their child, X, born in 2007. The dispute centred on allegations of family violence by each parent against the other, and the child's exposure to alcohol-related violence. The court was required to determine final parenting orders, considering the best interests of the 14-year-old child, including her expressed views.

The legal issues before the court were to determine the paramount consideration of the child's best interests, as mandated by section 60CA of the Family Law Act. This involved assessing the objects and principles outlined in section 60B, specifically whether to ensure a meaningful involvement of both parents, protect the child from harm, ensure adequate parenting, and ensure parents fulfil their responsibilities. The court also had to consider the child's right to know and be cared for by both parents, spend time with and communicate with them, and the principle that parents jointly share duties and responsibilities. Crucially, the court needed to make findings regarding the mother's alleged difficulties with alcohol consumption and aggression, and how these factors impacted the child's welfare.

Altobelli J applied the principles of the Family Law Act, particularly focusing on the paramountcy of the child's best interests. The court considered extensive expert evidence, including reports from family consultants and drug and alcohol specialists, alongside the evidence of the parents. Findings were made regarding the mother's propensity for aggression and alcohol-fuelled violence, and the impact of this on the child. The court also noted concerns about each parent's capacity to foster the child's relationship with the other parent and their lack of insight into how their actions affected X. Given the history of non-compliance with previous orders and the concerns raised, the court ultimately made final orders discharging all previous parenting orders.

Orders

Orders of the court

SYC 4645 of 2011

BETWEEN:

MR PIDOUX

Applicant

AND:

MS MAGNIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the child X born … 2007.

3. Within seven days of making any decision as to the long-term care, welfare and development of X, the father is to inform the mother in writing of such decision.

4. X live with the father.

5. In the event that X expresses a wish to spend time with the mother:

(a) Within seven days or such earlier time, the father shall do all such acts and things and sign all such documents as may be required to register with B contact centre, or such other service as agreed between the parents, or failing agreement, such other service as nominated by the Independent Children’s Lawyer, and invite the mother in writing to undertake registration with that service;

(b) The mother shall meet the cost of such supervision service;

(c) The time will occur in accordance with X’s wishes as to matters such as time, place, and activity undertaken, and otherwise in consultation with any counsellor or therapist X may be attending upon at the time;

(d) For a period of six months from the commencement of X spending time with the mother, such time shall be two hours per fortnight supervised by B contact centre with such visits being supervised in the community; and

(e) Such other times as agreed between X and the mother.

6. X communicate with her mother by telephone, Skype or other electronic means at her request and the father shall facilitate such call taking into account the mother’s work commitments, noting that such call may need to take place prior to 5pm.

7. The mother and extended maternal family be at liberty to send a card and/or present to X only on the occasions of X’s birthday, Naming Day, Christmas and Easter each year by sending the same to X’s home address, to be delivered no later than 7pm on any given day.

8. X communicate with and spend face-to-face time with members of her maternal extended family, excluding Mr C, at her request, and the father is to facilitate such communication and time.

9. X be at liberty to terminate any period of spend time with or any communication with her mother or extended maternal family at her request and in accordance with her wishes.

10. For the purposes of the above orders, the father is to do all things to actively encourage and facilitate such communication and/or spend-time-with arrangements.

11. Unless pre-arranged pursuant to orders 5, 6 and 7 herein, the mother is restrained from approaching or contacting X by any means, including but not limited to electronic and social media communication, attending X’s school, extra-curricular activities, her home, her father and stepmother’s place of work, or any church X may attend.

12. For the purposes of pre-arranged communication or time pursuant to orders 5 and 6 herein, the mother is restrained from communicating with X or attending time with X if she has consumed any alcohol in the 12 hours prior to the commencement of time.

13. Within seven days of the date of these orders, the father do all such acts and things and/or sign all such documents as may be required to register the mother as a parent of X with F School Suburb D which will facilitate the mother being placed on any email list or give authorisation for the mother to join any “App” that the school might use to disseminate information to parents, including providing a copy of any order form for school photos and having the mother’s details included on the schools “Compass” program.

14. In the event that X is hospitalised due to injury or illness, the father shall notify the mother as soon as practically possible, and no later than 24 hours of admission, and will keep the mother updated as to X’s progress in writing until such time as X is discharged.

15. The parents keep each other informed of their current residential address, telephone number and email at all times.

16. “In writing” for the purposes of these orders means by text message or email.

17. Both parents are restrained from discussing these proceedings or exposing X to any third party discussing these proceedings in the presence or hearing of X.

18. Both parents are restrained from making comments of a critical, demeaning or offensive nature about the other parent, their loved ones or members of their extended family in the presence or hearing of X, and are restrained from exposing X to any such comments by a third party.

19. The Independent Children’s Lawyer is given leave to provide a copy of these orders to The Principal, F School, Suburb D.

20. During any time X spends or communicates with the mother, the mother is restrained from bringing X into contact or having any communication with her half-brother Mr C.

21. The Independent Children’s Lawyer remain appointed in the matter for a period of six months from the date of these orders.

22. Within seven days of the date of these orders, the father do all such acts and things to engage a trauma-informed counsellor (hereinafter referred to as “the counsellor”) for X and inform the Independent Children’s Lawyer of the name, address, and contact details for that counsellor.

23. The father give all necessary authorisations to the counsellor for the counsellor to speak with the Independent Children’s Lawyer as to X’s progress.

24. Leave be granted to the Independent Children’s Lawyer to provide the following documents to the counsellor referred to in order 22:

(a) A copy of these orders;

(b) A copy of the reasons for judgement;

(c) A copy of the Family Report of Ms G dated 15 February, 2019; and

(d) A copy of the reports of Mr H dated 1 March and 14 May, 2018.

25. Leave be granted to the Independent Children’s Lawyer to relist this matter on 14 days’ notice in respect of the interpretation, implementation, or enforcement of these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This case concerns a child, X, born in 2007. X is currently 14 years of age. The Court had to decide whether X would live with her father, or mother, and what time she would spend with her other parent. BACKGROUND X’s mother is 51 years old and she describes herself as self-employed. She is the Respondent in this case. X’s father is the Applicant. He is 45 years old and describes himself as a social worker. The parents commenced living together in 2001 and married in 2005. They separated in January 2009. X initially lived with her mother and spent time with her father. On 2 November 2012 the parents entered into consent orders which provided for equal shared parental responsibility, for X to live with her mother and to spend alternate weekends and alternate Thursday overnights with her father, as well as school holidays and special occasions. It seems that there were problems implementing these orders from time to time. The problems escalated to a point, it would seem, where the father commenced fresh parenting proceedings in February 2017. At an interim hearing in August 2017 X was again ordered to live with her mother and spend time with her father five nights each fortnight. The mother was ordered to reside with her parents, and attend on J Services. On 5 October 2017, the matter was relisted, ostensibly because of the mother’s failure to comply with orders. Finally, on 13 October 2017, again ostensibly because of the mother’s failure to comply with orders as well as concerns about her abuse of alcohol, the Court suspended all previous parenting orders. X was ordered to live with her father and to spend each Sunday with the mother from 10am to 4pm. On 27 September 2018 further interim orders were made for the mother to have increased time with X including overnight time and block time of seven days. On 25 January 2019 there was a further interim hearing at which all interim orders for the mother to spend time with X were suspended and the matter was transferred to the Family Court. Throughout this period, and by way of summary, consistent concerns were raised about the mother’s capacity to look after X, primarily based on the mother’s aggression and consumption of alcohol. By the time of the final hearing before this Court, X had not physically spent time with her mother since 12 January 2019. X and her mother appeared to speak with reasonable regularity by telephone. In August 2020 the mother agreed to the terms of a final ADVO protecting the father from the mother, which will remain in place until August 2022. In February 2021 the mother was charged and convicted with breach of the ADVO and was fined $200. The father’s proposal at the final hearing was that he have sole parental responsibility, and that X lives with him and spend no time with her mother. Moreover, the mother would be restrained from attending X’s school, school events, extracurricular activities, primary residence, and any future place of employment. The orders proposed by the father are reproduced in the first schedule to these reasons. The father was at all relevant time represented by a solicitor and counsel.

Evidence

Evidence Before The Court

As will be seen from the reasons below, the Court has concerns about each parent’s capacity to foster and encourage X’s relationship with the other, each parent’s lack of insight into how their actions and inactions affect their daughter, as well as deep concerns about the mother’s capacity to parent X due to her propensity to be aggressive and to perpetrate what would seem to be alcohol-fuelled violence. The Court observed in closing submissions that it is likely that the shelf life of any order that the Court makes, from X’s perspective, is likely to be a short one. There also seemed to be a growing awareness between the parents that the real judgments about parental behaviour are more likely to be made by X in the fullness of time. THE EVIDENCE In support of his case, the father sought to rely on the following documents:(a)His Initiating Application filed 16 February 2017;(b)Child Inclusive Memorandum dated 29 May 2017; (c)Affidavit of Mr K Magnin filed 23 January 2019;(d)His Affidavit filed 19 March 2021;(e)Affidavit of Ms L filed 19 March 2021;(f)His Case Outline document filed 31 March 2021; and(g)Various documents from his bundle of exhibits to his Trial Affidavit, marked as exhibits A1 to A3. In support of her case, the mother sought to rely on the following documents:(a)Her Response to Initiating Application filed 21 July 2017;(b)Her Affidavit filed 16 March 2021; and(c)Her proposed orders, tendered and marked as exhibit R1. In support of her case, the Independent Children’s Lawyer sought to rely on the following documents:(a)Report of Mr H dated 6 March 2018, marked as part of exhibit ICL3;(b)Report of Mr H dated 14 May 2018, marked as part of exhibit ICL3;(c)Family Report of Ms G dated 15 February 2019, marked as ICL2; (d)Case Outline document filed 1 April 2021;(e)Proposed Minute of Order, marked as exhibit ICL1; and(f)Various documents tendered and marked as ICL4 to ICL10. The mother, father and family consultant were required for cross-examination, but no other witnesses.OUTLINE OF REASONS FOR JUDGMENT After stating the applicable law, the Court will firstly consider the expert evidence, which in this case includes the Child Inclusive Conference Memorandum prepared by family consultant M, the Family Report dated 15 February 2019 prepared by family consultant G; the expert drug and alcohol reports prepared by Mr H dated 1 March and 14 May 2019, as well as the report of educational and developmental psychologist, Ms Q. The examination of this expert evidence will not take place in a vacuum. Where appropriate, the Court will consider the evidence of the parents, and indeed, other evidence before the Court, in the context of individual issues covered by the reports. Thus, the evidence before the Court becomes a prism for better understanding the expert reports, and the expert reports become a prism for better understanding the evidence of the parties. The Court will need to make findings about some specific events and specific issues, such as whether or not the mother in fact has a difficulty with consumption of alcohol and aggression.

Decision

Reasons for decision

The mother, father and family consultant were required for cross-examination, but no other witnesses.OUTLINE OF REASONS FOR JUDGMENT After stating the applicable law, the Court will firstly consider the expert evidence, which in this case includes the Child Inclusive Conference Memorandum prepared by family consultant M, the Family Report dated 15 February 2019 prepared by family consultant G; the expert drug and alcohol reports prepared by Mr H dated 1 March and 14 May 2019, as well as the report of educational and developmental psychologist, Ms Q. The examination of this expert evidence will not take place in a vacuum. Where appropriate, the Court will consider the evidence of the parents, and indeed, other evidence before the Court, in the context of individual issues covered by the reports. Thus, the evidence before the Court becomes a prism for better understanding the expert reports, and the expert reports become a prism for better understanding the evidence of the parties. The Court will need to make findings about some specific events and specific issues, such as whether or not the mother in fact has a difficulty with consumption of alcohol and aggression. Thereafter, the evidence in its totality will be considered by reference to the primary and additional considerations set out in s 60CC of the Act.THE APPLICABLE LAW The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a) to maintain a connection with that culture; and(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii) to develop a positive appreciation of that culture.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.