Radley and Holder - [2017] FCCA 2799

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADLEY & HOLDER

[2017] FCCA 2799

Catchwords:
FAMILY LAW – Parenting – complex family violence matter – where the father subjected the mother to severe family violence during the parties relationship – where orders were made in May 2013 after a four day trial for the children to spend supervised time with the father at a specified contact centre for twelve months which was to be followed by unsupervised time of increasing length – where the contact centre declined to provide a service to the parties because of the mother’s level of distress at the intake interview – where the children spent no time with the father between the date of the orders and April 2016 - where in April 2016 the eldest child then aged 15 left the mother’s care and began residing with the father – where the two younger children have continued to live with the mother and spend no time with the father – where the parties agree that the eldest child should remain living with the father – where the father is seeking orders which will allow him to spend time with the younger children – where the mother proposes that the younger children spend no time with and have no communication with the father – relevance of the continuing impact on the mother of having been subjected to family violence.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Cases cited:

Hungerford & Tank [2007]FamCAFC 637

Mazorski & Albright (2007) 37 Fam LR 518

Radley & Radley [2013] FamCA 346

Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC93-363

Applicant:

MR RADLEY

Respondent:

MS HOLDER

File Number:

NCC 3296 of 2011

Judgment of:

Judge Terry

Hearing dates:

12, 13 and 14 December 2016

Date of Last Submission:

14 December 2016

Delivered at:

Tamworth

Delivered on:

29 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Ms Saw

Solicitors for the Respondent:	Carter Ferguson Solicitors and Attorneys
Counsel for the Independent Children's Lawyer:	Mr Mooney
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Newcastle

ORDERS

All previous parenting orders concerning Z (“Z”) born (omitted) 2001, X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2009 are discharged.
Z shall live with the father.
While Z is living with the father, the father shall have sole parental responsibility for Z.
If Z returns to live with the mother, then while Z is living with the mother (which is to be distinguished from spending time with her), the mother shall have sole parental responsibility for Z.
Z shall spend time with and communicate with the mother, X and Y as agreed between the mother and Z.
X and Y shall live with the mother.
The mother shall have sole parental responsibility for X and Y.
The father shall spend no time with and have no communication with X and Y.
The father is restrained and an injunction is…

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 Radley and Holder

Details

AGLC: Radley and Holder [2017] FCCA 2799
Case: [2017] FCCA 2799
Decision Date: 29 November 2017

CaseChat Overview and Summary

This case concerned parenting orders made by Judge Terry in the Federal Circuit Court of Australia. The dispute involved the father and mother of three children, Z, X, and Y, regarding their living arrangements, parental responsibility, and contact.

The court was required to determine the best interests of the children, specifically considering the views of the children, the capacity of each parent to provide for their needs, the likely effect of any change in circumstances, and any family violence. A key issue was the weight to be given to the expressed wishes of Z, who was adamant about wanting to see his father despite past difficulties and a police report made in 2014.

Judge Terry considered the views of Z, who, despite being distressed during interviews, expressed a strong desire to see his father, believing him to be changed and no longer a negative influence. Z stated he was old enough to handle any potential negative behaviour from his father and that his feelings for his father remained unchanged. The mother also confirmed Z's persistent desire to see his father, which led to Z leaving her home to live with the father. The court accepted that Z was happy living with his father but missed his siblings. The court also noted the father's injunction and restraint from contacting the mother and siblings, and the mother's ability to obtain passports and travel internationally with the children without the father's consent.

Orders

Orders of the court

All previous parenting orders concerning Z (“Z”) born (omitted) 2001, X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2009 are discharged.

Z shall live with the father.

While Z is living with the father, the father shall have sole parental responsibility for Z.

If Z returns to live with the mother, then while Z is living with the mother (which is to be distinguished from spending time with her), the mother shall have sole parental responsibility for Z.

Z shall spend time with and communicate with the mother, X and Y as agreed between the mother and Z.

X and Y shall live with the mother.

The mother shall have sole parental responsibility for X and Y.

The father shall spend no time with and have no communication with X and Y.

The father is restrained and an injunction is granted restraining him from contacting or attempting to contact the mother, X and Y.

10.

The mother may obtain passports for the children and travel internationally with the children or permit the children to travel internationally notwithstanding that the consent of the father has not been obtained.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

S. 60CC(3) contains additional considerations which include the views of the children, the capacity of each parent to provide for the needs of the children, the likely effect of a change in the children’s circumstances and any family violence involving the children or a member of the children’s family. I intend to start by making findings about the s.60CC (3) matters. The first s.60CC (3) matter is any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the children’s views. The family report interviews were conducted in October 2015 when all three children were living with the mother. In conversation with the family consultant Z was adamant that he wanted to see his father regardless of what had happened in the past. The family consultant said as follows: Z was obviously distressed and somewhat reluctant to be interviewed. He seemed quite angry and upset and it didn’t take long before he was in tears. He told the Family Consultant that the whole interview process was, in his opinion, a total waste of time because his views had been ignored when the previous Family Report was prepared and he had ended up having to move and live with his mother when he had made it quite clear that he wanted to live with his father. He said that he didn’t hold out much hope that things would be different this time around.Z said that he has already missed out on 3 years of seeing his father and that the Judge needed to consider that it was possible that people change and that his father was no longer the person he used to be. He said that his father didn’t drink anymore and was settled in a new relationship with someone he gets along well with and doesn’t fight with.Z said that, even if things did go wrong and his father did behave badly, he felt that he was now big enough to handle himself and that he wasn’t going to get led astray by anyone because he was never going to drink or smoke, no matter who tried to make him.He said that he knows who his dad is and what his dad has done, but that doesn’t change anything. He said that he still loves his father and misses him and wants to be with him.The Family Consultant asked Z about the report that he had made to the police during 2014 and whether it was accurate. He said that he would never tell a lie and that it was all true, but that it didn’t change the way he feels about his father.[9][9] Paragraphs 68 – 72 of the 2016 Family Report Those views resonate with the information the mother provided about Z. She said that since 2013 Z had alternated between being happy in her care and angry with his father and being angry with her for preventing him from seeing his father. She said that Z became very unsettled during the early part of 2016 and began telling her repeatedly that he wanted see his father. In April 2016 he acted on that wish and left the mother’s home. The father said, and I accept, that Z was happy living with him but missed his siblings and wanted to see and speak to them. The Independent Children’s Lawyer did not seek to present any evidence which contradicted this.