Sedgwick & Lind

Case [2021] FamCA 605

FAMILY COURT OF AUSTRALIA

Sedgwick & Lind [2021] FamCA 605

File number(s): SYC 4647 of 2008
Judgment of: MCCLELLAND DCJ
Date of judgment: 20 August 2021
Catchwords: FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child –Where the father seeks orders for equal shared parental responsibility and regular unsupervised time with the child – Where the mother seeks orders for sole parental responsibility and that the child has no contact with the father – Where the child has had no contact with the father for over six years – Where the father opposes professional supervision – Where the child wishes not to be compelled to contact the father – Primary consideration is the issue of risk to the child – Finding that the father has propensity to lose temper – Finding that the father has history of engaging in a pattern of abusive, coercive and controlling conduct in his close relationships– Finding that the father perpetrated significant injuries to his infant child over a period of time – Conclusion that the risk to the child outweighs benefits of a meaningful relationship with the father – Finding that supervision impracticable and will not mitigate risk – Orders made for the mother to have sole parental responsibility and for the child to have no contact with the father
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 60B, 61DA, 60CA, 60CC and 65DAA

Evidence Act 1995 (Cth) s. 140(2)

Family Law Rules 2004 (Cth) Pt 15
Cases cited:

A v A (1998) FLC 92-800

Adamson & Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Cotton and Cotton (1983) FLC 91-330

Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Johnson and Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Marvel v Marvel (2010) 43 Fam LR 348

McCall & Clark (2009) FLC 93-405

McGlen-McLeod v Galloway [2012] NSWCA 368

R & C [1993] FamCA 62

Stott & Holgar [2017] FamCAFC 152

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

The Hon. John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 354
Date of hearing: 26, 27, 29 and 30 April 2021
Place: Sydney by web conference
Counsel for the Applicant: Ms Bateman
Solicitor for the Applicant: Swifte Law
Counsel for the Respondent: Mr Hill
Solicitor for the Respondent: Elizabeth Fleming & Associates Lawyers
Counsel for the Independent Children’s Lawyer: Mr Moore
Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers

ORDERS

SYC 4647 of 2008
BETWEEN:

MR SEDGWICK

Applicant
AND:

MS LIND

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE…

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AGLC
Sedgwick & Lind [2021] FamCA 605
Case
[2021] FamCA 605
Decision Date

CaseChat Overview and Summary

In the matter of *Sedgwick & Lind*, heard by McClelland DCJ, the father sought orders for equal shared parental responsibility and regular unsupervised time with the child, X. The mother sought sole parental responsibility and no contact between X and the father. X had not had contact with her father for over six years, and the father opposed professional supervision of any contact. X expressed a wish not to be compelled to contact her father.

The court was required to determine the paramount issue of risk to the child, considering the father's history of anger management issues, abusive, coercive, and controlling conduct in past relationships, and findings that he had perpetrated significant injuries to an infant child over time. The court also had to consider the child's views, the nature of her relationship with each parent, the parents' capacity to provide for the child's needs, and the practical difficulties and potential risks associated with any contact.

McClelland DCJ found that the risk to the child outweighed the benefits of a meaningful relationship with the father. The court was not satisfied that supervision would mitigate the identified risks. The court noted the father's credibility was affected by inaccuracies in his evidence regarding income and past substance abuse, and his admission of breaching an interim apprehended domestic violence order. The court accepted the opinion of a family consultant that a father with anger management issues and a history of abusive intimate relationships could exhibit deficiencies in parenting, including a lack of empathy and sensitivity towards the child, and potentially use the child as a weapon against the other parent.

Consequently, the court ordered that the mother have sole parental responsibility for X, that X live with the mother, and that X have no time or communication with the father. Previous orders were discharged, including those placing the child on the Airport Watch List, and the mother was granted sole authority to apply for an Australian passport for X and to travel internationally with the child.

Orders

Orders of the court

SYC 4647 of 2008

BETWEEN:

MR SEDGWICK

Applicant

AND:

MS LIND

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous Orders be and are hereby discharged.

2. The Mother have sole parental responsibility for X born … 2007 (“the child”).

3. The child live with the Mother.

4. The child shall spend no time or communicate with the Father.

5. The Orders placing the child on the Airport Watch List are discharged and the Court requests the assistance of the Australian Federal Police in removing her name from the Airport Watch List.

6. The Mother be entitled to apply for an Australian Passport for the child, without the written consent of the father.

7. The Mother be entitled to travel outside of the Commonwealth of Australia with the child, without the consent of the Father.

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

Regrettably, that history of litigation and the resulting communication in respect to this litigation has contributed to tension in the relationship between mother and the paternal grandmother. As a consequence, the child is no longer spending time with either her paternal grandmother, or her half-sisters Y and Z. Further, regrettably, the acrimonious relationship between the parties has also impacted X’s half-sister W who she met in the context of interviews with the family consultant, Ms D, but with whom she has not otherwise spent time.BACKGROUND There is an extensive history of conflict in this matter, and a significant aspect concerns issues arising subsequent to the parties’ separation, with respect to Y and Z, and the parties’ respective relationships with the paternal grandmother. I will now, however, set out the agreed facts relevant to this matter and, where controversial, the parties’ respective factual contentions. I will subsequently set out my findings in respect to contentious factual issues where it has been necessary for a factual finding to be made, in arriving at my conclusion as to the orders that I make in these proceedings. In 1973, the father was born in Australia. He is currently aged 48 years. In 1978, Ms Yi was born in East Asia (“East Asia”). She is currently aged 43 years. In 1978, the mother was born in East Asia. She is currently aged 42 years. In 1992, Ms C was born in South East Asia (South East Asia). She is currently aged 29 years. In 2005, the mother migrated from East Asia to Australia on a working holiday visa. In 2005, the parties commenced their relationship. In April 2006, the parties commenced cohabitation. Later in 2006, the parties married in Australia. In 2007, an incident occurred between the parties while the mother was pregnant with X. The mother contends that, during the course of an argument between the parties whilst travelling in a motor vehicle driven by the father, the father became verbally abusive towards her which caused her to become distressed. She further contends that the father then forced her out of the vehicle and drove away, leaving her alone by the side of the road for an hour on a hot day before returning to drive the parties home. The father denies that he forced the mother out and, comparatively, contends that she left the motor vehicle upon her own request to do so. In 2007, X was born. She is currently aged 13 years. The mother contends that, from 2005 until the parties separated in June 2008, the father would often become angry and throw objects towards her but that they did not injure her. The father acknowledged that he may have thrown a newspaper down in anger but otherwise denies throwing objects at the mother. In June 2008, the parties separated. The mother contends that this occurred on 13 June 2008 when she left the former matrimonial home with X. On 13 June 2008, the mother left the former matrimonial home with X to stay in a women’s refuge. The mother contends that this was as a result of the domestic violence perpetrated by the father over the course of the parties’ relationship. Comparatively, the father contends that there was no reason for the mother to go to a refuge for victims of domestic violence.

Evidence

Evidence Before The Court

In particular, the mother did not exaggerate her allegations and, in that respect, while she attested to being the victim of family violence including the father throwing objects at her when he lost his temper, she did not allege that the father had physically injured her. She also attested that the father hit the back of her hand with an empty cereal box but stated that his actions did not cause her injury (Transcript 27 April 2021, p.167 line 45 to p.146 line 23). The evidence of the father The credibility and the reliability of the father’s evidence was detrimentally affected by several inaccuracies contained in his evidence in respect to a number of different matters. This included his assertion, at paragraph 113 of the father’s Affidavit, that the father’s “annual net income is $18,000.00 per annum”, in circumstances where it is clear, from his oral evidence given in these proceedings, that he failed to include these profits that he has generated from trading cryptocurrency as part of his income. I am further satisfied that the father has understated the extent of his previous drug use. In that respect, he acknowledged, at paragraph 128 of his Affidavit, that he “occasionally consumed marijuana” but denies consuming any drugs for at least seven (7) years. That evidence, however, appears to significantly understate the extent to which the father has had issues with substance abuse in the past. Notes of an interview conducted by a caseworker from the Department with the father on 14 June 2013, included at page 72 of the Independent Children’s Lawyer’s tender bundle marked ‘Exhibit 6’ in these proceedings, record the father disclosing that he roughly handled Y, the child who was the subject of the question to which he was answering, because “it was a terrible time for me” and that he was “[with]drawing from drugs” which had included using “alcohol, marijuana & s[ome]times ecstasy”. The fact that the father has, in these proceedings, failed to acknowledge the extent to which he has suffered from substance abuse in the past, is a factor that I have taken into consideration in assessing the credibility and reliability of his evidence. Furthermore, the father acknowledges breaching the interim ADVO naming the mother as a protected person, the circumstances of which I will set out in greater detail below. The father, stated, however, in the course of giving oral evidence, that he did so “unwittingly and unknowingly” (Transcript 26 April 2021, p.32 lines 4–5). This is despite the fact that, at paragraph 147 of his Affidavit, the explanation that he provided for acting in breach of the interim ADVO was that he “was not aware of the conditions of the AVO as [he] had lost the document”. That statement necessarily means the father had been in possession of the interim ADVO prior to losing a copy of the order and, thus, he was aware that he was the named defendant of an interim ADVO for the protection of the mother at the time of the breaches. The fact that the father did not, in answer to questions put by counsel for the mother during the course of giving oral evidence, acknowledge that he did communicate with the mother, knowing that the interim ADVO had been issued, is therefore also a factor that I have considered in assessing the credibility of the father’s evidence.

Decision

Reasons for decision

In terms of other significant relationships, the mother stated, at paragraph 79 of her Affidavit, that the child has FaceTime communication with her maternal grandmother, who has resided in East Asia throughout her life. The mother stated that she would like the child to have the opportunity to travel to East Asia, in order to meet her maternal grandmother and also develop a relationship with other members of the maternal family. I accept the importance of the child developing her connection with her maternal family and her East Asian culture more, broadly, and agree with the mother’s contentions in that respect. For that reason, and further reasons which I will set out below, I will make an order removing the child from the Commonwealth Airport Watch list, to enable her to travel to East Asia with her mother and meet her extended maternal family.Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i) It was not disputed that the mother has been the child’s primary carer since her birth. It is further not disputed that, save to the extent that she saw the father during the interview conducted on 21 November 2019 for the purpose of preparing the Family Report, the child has not seen the father since December 2014. The circumstances in which the child ceased the previous contact she had with her father in December 2014, were that the parties agreed to final orders, on 29 April 2014, which provided for X to spend time with the father, under the supervision of the paternal grandmother and her partner, Ms B. As has been detailed above, in December 2014, the paternal grandmother indicated that she was no longer prepared to supervise the time which the child spent with the father. The father denies that this decision was a result of the paternal grandmother’s decision that she was not prepared to further tolerate the father’s abusive conduct. However, for reasons which I have set out above, I am satisfied that was indeed the reason for the paternal grandmother withdrawing as a supervisor of the time that the child spent with her father. In circumstances where I have made findings that the father has difficulty in managing his anger, and where he has engaged in a pattern of abusive, coercive and controlling conduct in respect to his intimate partners, I have serious concerns relating to his parenting capacity. In that context, I note and accept the opinion expressed by Ms D to the Court, that:If it’s found that [the father] does have a serious problem controlling his anger and that he is abusive to people in intimate relationships, yes, this would signify a really serious, perhaps deficiency in his parenting and his ability to show empathy to his – to X; to be sensitive to X. And I think I said it in this report – I think I was reading it just earlier – that the concern is that – I mean, there’s a myriad of negative impacts on children from exposure to family violence. But even removing that exposure, you know, parents – perpetrators of family violence have been shown to have less – or might be likely to use more inappropriate forms of discipline with children, whether that be physical; harsher forms of punishment; insensitivity. And so I think that, yes, if it’s demonstrated that he has a problem in controlling his anger, then has a whole, yes, range of potential impacts for X about his ability to control his anger with X; his ability to be sensitive to her; yes, to say appropriate – to speak appropriately with her about matters. And I think [the mother] has raised that in the past that when they were having contact that [the father] was denigrating her to X and children can be still used as a weapon to try to control the other parent; to cause upset to the other parent. And, yes, the child can be used as a pawn in that.(Transcript 29 April 2021, p.182 lines 29–45)

Ratio Decidendi

Legal Principle Established

For reasons which I set out below, I have determined that there is an unacceptable risk in the child spending time with or communicating with the father, which I am not satisfied can be sufficiently managed or ameliorated.Additional considerations Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:(a)Issues relating to the children – their views, level of maturity, culture and relationships:·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; ·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.(c)Effect of change:·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.(d)Practical difficulty of implementation:·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.(e)Avoiding further proceedings:·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (f)Other relevant matters :·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.