SEVGI & CHAFFEN
[2019] FCCA 1983
•19 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEVGI & CHAFFEN | [2019] FCCA 1983 |
| Catchwords: FAMILY LAW – Parenting – sole parental responsibility – one child - whether a coercive order should be made – who the child shall live with – the child to spend long term supervised time with father – incremental progression of time spent with the child and father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC(2)(a) & (b), 60(2A), 61DA(1), 65DAA(1) & (2) and 68B. |
| Cases cited: Oswald & Karrington [2016] FamCAFC 152 |
| Applicant: | MR SEVGI |
| Respondent: | MS CHAFFEN |
| File Number: | SYC 7423 of 2015 |
| Judgment of: | Judge Middleton |
| Hearing date: | 27 & 28 March and 27 & 28 May 2019 |
| Date of Last Submission: | 28 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 19 July 2019 |
REPRESENTATION
| Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr Honchin |
| Solicitors for the Respondent: | Bevan & Griffin Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Collins |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That the mother have sole parental responsibility for the child [X] born … 2007 (“the child”).
That the child live with the respondent mother.
That within seven days of the date of this order, the parties contact the B Contact Service with a view to undertaking an intake session for the purpose of the child spending supervised time with the father.
That until the child turns 13 years of age and commencing as soon as practicable after the date of this order the child spends time with the father as follows:
(a)At the B Contact Service at such times as agreed between the parties and the contact centre at least once every two months;
(b)By telephone/Facetime or skype each Tuesday, Thursday and Sunday between the hours of 6:30pm and 7:00pm Queensland time.
Provided that the child has spent time with Father in accordance with Order 4, then upon the child having attained the age of 13 years as follows:
(a)For one half of the term 1, 2 and 3 Queensland gazetted school holidays during the daytime only between the hours of 9:00am and 5:00pm.;
(b)During the Christmas holiday period for one week as agreed between the parents during daytime only between the hours of 9:00am and 5:00pm with such time to occur in Town B or otherwise in Sydney in the event the mother is otherwise travelling to Sydney;
(c)By telephone/Facetime or skype each Tuesday, Thursday and Sunday between the hours of 6:30pm and 7:00pm Queensland time.
Pursuant to section 68B of the family Law act (1975) (Cth) the Applicant father is restrained and an injunction is granted restraining him from removing the child from school, after-school care, extracurricular activity or from the care of any person who’s care the mother has placed the child.
That Save for in accordance with these orders the father is restrained from contacting or coming into the presence of the child and/or the mother and from attending upon their home, school, place of employment and/or any other place where it is likely that the mother and the child will be in attendance.
That the mother is authorised and permitted to travel internationally with the child.
That the mother is authorised and permitted to apply for and receive an Australian passport for the child without first obtaining the written consent of the father.
That in the event that the child has an illness or emergency the mother is to inform the father as soon as reasonably practicable.
That the father is hereby authorised to obtain from the child's school all notices, letters, school reports at his cost.
That each party shall advise the other of any change of telephone number or residential address within 48 hours of such change occurring.
That each party is restrained from discussing these proceedings with the child, or permitting any third person to do so.
That neither party will denigrate the other parent or any member of the other parent's family in the presence or hearing of the child.
IT IS NOTED that publication of this judgment under the pseudonym Sevgi & Chaffen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
SYC 7423 of 2015
| MR SEVGI |
Applicant
And
| MS CHAFFEN |
Respondent
REASONS FOR JUDGMENT
Background
This is a parenting application involving one child, [X] born on … 2007, 11 years at the time of trial.
Mr Sevgi is the child's father and he is 43 at the time of the trial.
Ms Chaffen is the child's mother and she is 41 the time of trial
The mother has lived in Town B for approximately 3 1/2 years and continues to reside in Sydney.
The mother has four other children to a subsequent partner Mr O, namely [P] born … 2012, [Q] born … 2013, [R] born … 2015 and [S] born … 2017.
The mother moved to Town B after being advised by the Department of families and community services (New South Wales), that the Department had concerns with regards to the father and also because the mother says there was domestic violence throughout the relationship, and she was quite scared off him.
The father alleges that the mother abuses the child, in the form of hitting and smacking, and neglects the child in the form of failure to provide appropriate food and failure to ensure the child is appropriately clean at all times.
The father wants the mother and all four of her other children to reside in Sydney and the mother wishes to remain in Town B.
The parties agree that the co-parenting relationship between them is virtually non-existent.
Material
The father relied upon the following material:
a)The father's affidavits of 12 November 2015, 19 November 2015, 20 May 2016, 24 May 2016, and 8 March 2019;
b)Case outline for 19 March 2019.
The mother relied upon:
a)Her response filed 3 February 2016;
b)Affidavit filed 8 March 2019;
c)Affidavit of Ms T filed 8 March 2019;
d)Affidavit of Ms U filed 8 March 2018;
e)Affidavit of Ms V filed 15 March 2009;
f)Case outline filed on 25 March 2019.
The Independent Children's lawyer relied upon the following material:
a)The report of Ms W dated 16 November 2016;
b)The report of Ms W dated 11 March 2019;
c)The order of Judge Henderson, dated 25 May 2016
Orders
The father sought orders as set out in his Case outline filed 19 March 2019.
The father seeks a coercive order that the mother relocate to Sydney and live within 15 km of the father and that thereafter she be restrained from relocating more than 15 km of the father's home in Suburb Y, New South Wales, without the consent of the father.
The father seeks an order that the child live with the mother and that the child spend time with him each alternate weekend from after school Friday until commencement of school Monday and for one half of each of the school holiday periods alternating from year-to-year between the first and second halves of the holiday period.
The father seeks orders relating to the sharing of information and a restraint in the child holidaying in any country that is outside the Hague Convention without the consent of the other party.
The father seeks an order for equal shared parental responsibility for the child.
The mother sets out the orders she is seeking in her case outline filed on 25 March 2019.
The mother seeks an Order for sole parental responsibility and that the child live with her.
The mother seeks and order that the child spend time with the father supervised at relationships Australia in Town B.
At the conclusion of the trial, the mother's position had changed to a position where she sought an order that the child spend time in Sydney during the school holidays with the father during the day time only until such time as the child reach the age of 13 years and thereafter that the child spend overnight time with the father during holidays.
The independent children's lawyer sought orders as set out in the case outline filed 22 March 2019.
The independent children's lawyer supported the mother's case that there be an order for sole parental responsibility favouring the mother for the child. However, reserved her position in relation to the spend time arrangements between the child and the father.
At the conclusion of the trial the independent children's lawyer sought an order for the child to spend time with the father on a supervised basis, on an interim basis.
Issues
Having regard to the orders sought by the parties and the evidence before the court, the following issues are to be determined:
a)Whether a coercive order should be made;
b)With whom the child should live;
c)What time arrangements should be ordered with the non-resident parent;
d)Whether there was any family violence;
e)Whether there was any abuse or neglect of the child by the mother;
f)What orders should be made for parental responsibility and;
g)Whether final or interim orders should be made.
The Law
Guided by the objects and principles set out in section 60B of the family Law act 1975 (Cth) (“the act”), and having regard to the best interests of the child as my paramount consideration pursuant to section 60CA of the act I must make orders that are in the best interests of the child.
In determining what orders are in the best interests of the child, I must consider the matters set out in section 60CC.
When considering the primary consideration set out in section 60CC(2)(a) and (b). I must give greater weight to the consideration set out in paragraph (2)(b).
When determining the issue of parental responsibility I must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[1]
[1] s 601DA(1) Family Law Act 1975 (Cth)
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in (a) abuse of the child, or (b) family violence.
Furthermore, the presumption may be rebutted by evidence that satisfies me that it would not otherwise be in the best interest of the child for the child's parents to have equal shared parental responsibility.[2]
[2] Ibid s 61DA(4).
In the event that I make an order for equal shared parental responsibility the provisions of section 65DAA are triggered. The High Court in MRR v GR[3] held that, when an order for equal shared parental responsibility is made, it is imperative for the court to consider whether an order that the child spend equal time with each of its parents, is both in the best interests of the child and reasonably practicable, and if it is, consider making such an order.
[3] (2010) FLC 93 – 424
Furthermore, the High Court went on to say that it is equally imperative that, in the event an equal time order is not in the best interests and reasonably practicable, the court determine whether it is both in the child's best interests and reasonably practicable for the child to spend substantial and significant time with each of the child's parents again if it is, consider making an order for the child to spend substantial significant time which of the child's parents.
Importantly, the High Court held that section 65DAA (1) and (2) is concerned with the reality of the situation of the parents and the child and not whether it is desirable that there be an equal time arrangement or a substantial and significant time arrangement. That is, I must make orders having regard to the factual matrix that presents itself as a result of the assessment of the evidence.
The father seeks an order that the mother and her children, or more appropriately, relevantly this child, relocate back to within a 15 km radius of the father's address in Suburb Y, Sydney. Such an order would be a coercive order in circumstances where the father seeks an order that the child continues to live with the mother.
In Oswald & Karrington[4] the full Court allowed the mother's appeal against a coercive order made by the trial judge. Referring to D & SV[5] and Sampson & Hartnet[6] the full court noted that:
a)It is well established that the proper exercise of the power to make a coercive order is at the extreme end of the discretionary range;
b)There needs to be rare or extreme factors that warrant the exercise of the court's discretion to make a coercive order requiring a parent to relocate so as to continue to undertake the role of primary carer,
c)The court must explore and consider alternatives to restricting freedom of movement, particularly where a coercive order would require a party to relocate contrary to that party's proposal, and involve the primary carer undertaking the role of primary carer in a place which was not of the primary carer's choice.
[4] [2016] FamCAFC 152.
[5] (2003) FLC 93 – 137
[6] (number 10)(2007) FLC 93-350.
Assessing the evidence with reference to the legislative pathway
The parents disagreed on the date of separation, the mother stated that the parents separated during her pregnancy with the child around July 2007 and the father stated that the parents separated in 2010. Nothing much turns on this point save as to note that notwithstanding the difference in the separation dates it is well-established that the child had an ongoing and significant relationship with both of her parents until approximately mid 2015.
In mid 2015 a complaint was made by the mother of a nine-year-old girl on 1 June 2015 that the father had committed sexual assault and acts of indecency on various occasions at a time when the child subject to the complaint was seven years old.
The complainant mother owned premises where the father resided as a boarder. At the time the complaint was made the father no longer resided with the victim or her mother.
Following on from that complaint the father then attended Suburb E police station and made an allegation that the mother had struck the child with a broom on or about 15 May 2015 and dragged the child by the arm, causing her to fall on or about 20 June 2015. He showed police a bruise the size of approximately a 20 cent piece.
The Department of family and community services became involved with the family and advised the mother that she not allow the child to spend time with the father and furthermore assisted the mother in finding emergency housing.
The mother moved to Town B shortly thereafter.
Orders were made 25 May 2016 for the parents to have equal shared parental responsibility for the child, for the child to live in Town B and for the child to spend supervised time with the father in Town B, together with regular phone communication.
At the time of the updated family report dated 11 March 2019 the child had spent time with her father on only a very few occasions after the child relocated to Town B with her mother in September 2015.
At the time the child moved to live in Town B she was almost 8 years of age and had had an ongoing and significant relationship with her father.
At the time of the interviews between the child and the father the child was very happy to see her father and clearly wanted to spend time with him and see more of him.
I am satisfied on the evidence that despite the father's complaints that he only speaks to the child approximately 50% of the time that he attempts to, and despite the child having not seen her father very much at all for approximately 3 1/2 years, the child has a secure and strong relationship with her father.
Indeed the observations between the child and her father[7] clearly show that the child has been able to maintain a meaningful relationship with her father by sharing information about online games and activities that they had already engaged in, and as a result of the telephone communication that had been occurring between the child and her father.
[7] See paragraphs 86-89 of the Report dated 11 March 2019.
In McCall & Clark[8] the full Court concluded that a prospective approach is the appropriate way to address the benefit to a child of a meaningful relationship with both parents.
[8] [2009] FamCAFC 92
In those circumstances I am required to explore the existing relationship between the child and her parents, assess the evidence as it is at the date of the trial and determine, if it is in a child's best interests to have a meaningful relationship, how orders can be drawn to ensure that the child has a meaningful relationship with both parents moving forward.
Clearly, the second primary consideration is a relevant factor in determining how orders should be framed if a meaningful relationship is to continue.
I am satisfied on the evidence that it is appropriate for this child to have a meaningful relationship with both parents, provided it is safe to do so.
The father alleges that the mother has abused and neglected the child through:
a)Striking the child on the legs with a broom handle;
b)Grabbing the child by the arm and dragging her to the ground, causing a bruise at the base of the spine;
c)Failing to provide the child with nourishing food;
d)Failing to ensure the child maintains cleanliness and hygiene.
The evidence establishes that the father made a report in relation to the acts of physical violence alleged to have been caused by the mother.
The department of Family and community services (NSW) interviewed the child in relation to the alleged incidents and the child made no disclosure to officers within the Department.
The New South Wales police received the report of the incidents from the father and they ultimately concluded that there were no concerns in relation to the mother's care of the child and took no further action.[9]
[9] See Exhibit 5.
The mother was cross-examined in relation to the incidents and she admitted to smacking child and feeling regretful almost immediately thereafter.
Indeed, the mother sent a text message to the father shortly after the incident, setting out that she was sorry for smacking the child and that she wished to see her child again.[10]
[10] See Exhibit OJS 2.5 of the Father’s Affidavit filed 20 May 2016.
The mother denied striking the child with a broom handle or deliberately harming the child in the manner alleged by the father.
Having the benefit of hearing the mother cross-examined on this issue and watching as she gave evidence I am satisfied that there is no risk of the child being physically assaulted in the mother's care.
The allegation relating to lack of hygiene arises as a result of the father spending time with the child at the Town B contact Centre in 2017. The father alleges that the child was “filthy” and took photographs of the child's neck and behind her ears to obtain evidence of the amount of dirt that was on the child.
The mother was cross-examined in relation to this aspect and acknowledged that a complaint had been made to the Town B contact centre staff and that the contact centre staff had advised the mother to ensure that the child was clean at all times.
The mother gave evidence that the child is clean at all times however, on the day that the father saw her they had rushed from school to the contact centre to ensure the child did not miss out on spending time with the father. It was the mother's evidence that when she got home the dirt was removed by simply wiping it away with a damp cloth.
The father provided coloured photographs of the alleged “filth" and I was not satisfied on that evidence that the child had been neglected in the manner alleged by the father.
I am satisfied that the mother's evidence in relation to this incident is the more persuasive and in those circumstances, do not consider that the child is at risk of being neglected as result of poor hygiene in the mother's care.
The father alleges that the mother fails to provide nutritious food to the child. There is no objective independent evidence to support or negate this allegation.
The mother acknowledges that the child is a fussy eater and also stated that she wished the child eat more vegetables.
The child has come under the attention of the department of family and community services (NSW) on a number of occasions throughout her life and at no stage has any officer of the department raised any concerns in relation to the child's weight.
It is noted that the child has primarily lived with the mother, all of her life.
Furthermore there are no issues raised by any of the child's teachers in relation to this or any other aspect of the care of the child and in those circumstances I cannot be satisfied that there is a risk to this child being neglected as result of a failure on behalf of the mother to provide nutritious meals.
The mother alleges that the father is a perpetrator of family violence, and that he poses a risk to the child as a result of his aggressive nature.
The mother refers to an incident that occurred in 2001 when the parties were living together in Sydney. At this time the parties lived above a business and there was an ongoing dispute between the father and the employees relating to the noise being generated in the early hours of the morning from the business.
It is an agreed fact that two people associated with the business broke into the parties home armed with a weapon.
It is an agreed fact that that a fight and/or struggle broke out between the father and the other two males and that during that fight both of the other two males were injured with a knife that was in the possession of the father.
The father was charged with murder and assault occasioning grievous bodily harm as a result of the incident. The father was acquitted of both offences on the grounds of self-defence.
The mother alleges that since that time the father's behaviour in relation to aggression has been at times very frightening.
It should be noted that the parties continued in a relationship until at least 2007, on the mother's case, or 2010 on the father's case.
Exhibit 4 in the proceedings is a record from the department of family and community services (NSW) and the record notes that there was a report of the mother trying to escape domestic violence perpetrated by the father in circumstances where the parties had resumed living together after the father had located the mother again in 2009.
The note indicates psychological abuse was marked for the child as she was witnessing domestic violence between the parties and as a result of the mother's high level of anxiety due to the violence.
Exhibit 6 in the proceedings is a police report dated 7 August 2013.The report indicates that there was evidence of scratches to the mother, and that there had been evidence of threats to harm the mother and as a result, the father was charged, but not convicted of assaulting the mother.
Exhibit 7 is a police entry dated the 11th of February 2012 when the police took a complaint from the father's employer at “J Company” of a threatening phone call. The alleged threat was that the father had said to his employer “you’re dead”.
The police spoke with the father in relation to this incident and he admitted to being irate at being unfairly dismissed and stated that he said to his employer before terminating the telephone call “you’re a dick” and not “You’re dead”. As a result, the police advised the father to stay away from his employer and advised the employer to call police if the issue continued.
Exhibit 7 also contains a police report dated 7 April 2011 relating to an act of intimidation and threats of physical violence. The report notes a prior history of violence, including stalking and intimidation.
The mother alleged that the father would attend upon the home uninvited on numerous occasions and when she asked him to leave he refused to do so. The mother alleged that when she informed the father that she wanted to obtain a divorce he threatened to kick her in the head.
The police entry notes the mother left the home on foot and obtained a lift to attend Suburb AA police station to report the matter. The police note that while the mother was in the police station she received several phone calls and text messages from the father asking what she was doing.
The police had a short conversation with the father by phone and he denied any wrongdoing. The report notes that the mother would be staying at alternative accommodation until she could arrange to have the locks changed at home.
The police invited the father to attend the police station to be interviewed in relation to the matter and when he declined and the police said that they would start looking for him, the report indicates that the father became irate and told the police not to threaten him.
The mother ultimately obtained a domestic violence order in 2015. During submissions it was submitted by the father that the apprehended domestic violence orders are “handed out” and that the mother lied when giving evidence concerning the apprehended domestic violence order.
The father admits to calling the mother “Numb nut” and/or “dick head”.[11] The father says he never called the mother any other names and has never denigrated or belittled mother personally however agreed that during a dispute with the mother over the parenting of the child he said words to the effect of “Fuck you and your pathetic parenting” and that he said words to the effect of “If you ever hurt my daughter physically or emotionally I will do what my mind sees fit.”
[11] See para 9 9 father's affidavit filed 20/05/2016
The father denies that he is controlling with regards to the raising of the child, however, admits that “because the respondent was busy raising three other young children in addition to [X], I felt that I had to direct the respondent to ensure that [X] was not being neglected, went to school on time, and did her homework, and went to music and gymnastic lessons which I paid for”.
The father admits that he was “very insistent that [X] not spend time or be cared for by other males”. The father says this was as a result of the mother telling him that she had been abused by her own father.
The father acknowledged that he stopped having any physical contact with the mother prior to the child being born and that after the child was born he believed he loved the child and the mother in the ratio of “99.9% to the child and 00.1% to the mother”. In fact, on 6 August 2009 the father sent an email to the mother setting out that exact ratio.
In the same email there is an indication of the manner in which the father treated the mother in the penultimate sentence where he says:
“Maybe if Ms Chaffen is good we will make another baby by summer so my [X] can have a brother or sister to play with."
That comment certainly indicates that the father believed he was in control of the family dynamic.
The mother says she consented to the father spending time with the child in Sydney over the Christmas period. It is an agreed fact that on 1 January 2017 during that time the father, his mother and his brother all became involved in a heated dispute that ended in violence.
The child was present during the violent assault that occurred and the father acknowledged that all of the adults were speaking in Country A language and that the child would not have understood what was occurring save for the fact that he and his brother were physically assaulting each other.
The police were called and both the father and his brother were charged with assault.
The police took the child to the police station in order to remove her from the father's care and contacted the department of family committee services.
Departmental officers from the department of family committee services contacted the mother and informed her that she would need to take care of the child and remove her from the father's care immediately. The mother arranged for her mother to pick up the child from the police station.
The father was cross-examined about this incident and the answers he gave satisfied me that he had very little insight as to the effects the domestic violence may have had on the child, and furthermore very little insight into how to protect the child from similar acts of family violence.
Indeed it was the father's evidence that the confrontation was unavoidable. Furthermore, the father gave clear evidence that if someone strikes him he will strike them back.
The father represented himself in these proceedings. As is my practice when self- represented people cross-examine their former partners and there are allegations of family violence I explained to the father the manner in which he should conduct himself when cross-examining the mother. I told him that he should refrain from asking demeaning or belittling questions and concentrate on the issues before the court.
On two separate occasions I had to intervene to warn the father that his questions were demeaning and or belittling and on the second occasion indicated that if it continued the cross examination would have to stop.
The overall impression I gained after watching the father cross-examine the mother was that he was controlling and at times intimidating and he did not value the mothers input very much at all.
Having regard to all of those matters I am satisfied, on balance, that the father committed acts of family violence, both during the relationship and after the relationship had ceased. I am further satisfied that the father was involved in the act of family violence in the presence and/or hearing of the child on a number of occasions including on 1 January 2017.
I am further satisfied that the father has no difficulty in acting out with violence in circumstances where he believes there is either a right to do so or a perceived threat.
The overall demeanour and presentation of the father was one that led me to believe that it was either his way or no way at all. Indeed, when questioned about spending day time only with the child in Sydney for a period of time the father said it would be degrading as he claimed spending time with the child at the supervised contact centre was degrading. During submissions the father said “if my orders are not made, it would be degrading”.
During submissions the father presented in such a way that I formed the view that he could not regulate his emotions. The father gave submissions through the whole range of emotions ranging from tearful sobbing through to outright anger. It left me to wonder if the father could not regulate his emotions in court in front of a judge what chance would there be of him regulating emotions in a less formal environment.
The family consultant Ms W gave evidence that the incident in January 2017 would have been quite frightening for the child and stated that if a similar incident was to occur, it would be very negative for her and that she may as a result want to disengage from her father.
When Ms W was cross-examined by the father he asked her whether it would be better if the child talked to both parents if something was happening that she was not happy about. Ms W gave evidence that the father had spoken to her at length about that issue with her during the interviews.
It is the evidence of Ms W that there is a very real risk that the father will again raise issues about the child's upbringing, hygiene, academic progress, diet and this would lead to further proceedings at the very least.
It is my view that the father still blames the mother for most of the dispute. Indeed, he suggested that the mother set him up somehow in order to orchestrate the incident that occurred on 1 January 2017.
Much of the father's cross-examination and submissions related to the need to have the child close to him so that the child could inform him of matters that occur in the mother's home.
In my view there is a very real risk that this child would be exposed to ongoing conflict as a result of the father's dogged belief that he is right at all times and that the mother is not caring for the child appropriately.
Having regard to all of that evidence I am satisfied that there is a need to protect the child from physical or psychological harm from being exposed to family violence in the care of the father. I have to give greater weight to this consideration pursuant to section 60CC(2A).
Additional Considerations
The evidence establishes that the child wants to spend time with her father. She has, from time to time, expressed a desire to return to Sydney, no doubt, to be closer to her father.
The mother consented to the child spending time with the father over the Christmas period of 2016/2017 because she is aware that the child misses her father.
The child is 11 years and seven months, and is of an age were her views can be given some weight. However, I must consider those views, having regard to all of the evidence in its entirety.
The evidence establishes that the child has a close secure and primary attachment with her mother. The child lives in a home with four other step siblings and the mother's evidence is that all the children get along and in those circumstances I am satisfied that the child has an attachment to her step siblings.
The child is clearly attached to the father and has a meaningful relationship with him. Notwithstanding the difficulty that has been in place for the two of them to have ongoing communication and spend time with arrangements.
The mother has primarily been responsible for making decisions regarding the major long-term issues for this child as a result of relocating to Town B from Sydney in mid-2015.
The father has attempted to be involved in making decisions for the child. However, due to the lack of coparenting relationship his efforts have been rather ineffectual and have led to further disputes between the parents.
I am satisfied on the evidence that both parents fulfilled their obligations to maintain the child and, indeed, the evidence establishes that the father makes payments for additional items from time to time.
If I were to make orders consistent with the father's application I would be removing the child from the Town B area where she has lived for 3 years and 10 months.
Both parents agree that the child is happy and settled and that she engages in regular extracurricular activities. The child has been offered a high school scholarship at BB College, and indeed has been enrolled in BB College as a result. The child lives with her step siblings in a location that has been familiar to her for that period of time.
If I ordered the child to relocate with the mother to Sydney she would return to an area that she knew for approximately eight years of her life. However, having regard to the fact that she is now a high school student and engaged in extracurricular activities in Town B the situation in Sydney would be vastly different to the circumstances she is currently in Town B.
Furthermore, if I was to make orders for the child to relocate to Sydney, I would only do so in circumstances where I was satisfied that it was in the child's best interests for her to spend substantial and significant time with her father.
The evidence does not satisfy me that such an order would be in the child's best interests, particularly having regard to the risks that I have highlighted and the total lack of co-parenting relationship.
For those reasons I am satisfied that a move to Sydney at this time of the child's life would have a disadvantageous effect on the child.
There is a real practical difficulty and expense involved in the child spending time and communicating with her father whilst ever she lives in Town B.
Both parents are on Centrelink benefits and as result have very limited funds available to them.
The mother stated whilst being cross-examined that if she was given sufficient notice of the child's need to travel to Sydney she could potentially save monies so as to assist in the cost of that travel.
Whilst I accept the mother was being honest in her answer I must assess the answer having regard to the factual circumstances in which the mother finds herself. She is living as a single parent with five children and on Centrelink benefits. She does have assistance from Mr O, however, has limited financial resources.
In those circumstances, the practical difficulty and expense will have a direct impact and will substantially affect the child's right to maintain personal relationships and direct contact with both of her parents.
I am satisfied on the evidence that the mother has the capacity to provide for the needs of the child including emotional and intellectual needs.
Despite the father's allegations I am not satisfied that there is any evidence to suggest the mother has been abusing and/or neglecting the child.
I have some concerns over the father's capacity to provide for the needs of the child, particularly her emotional needs having regard to the evidence surrounding the events of 1 January 2017 and the lack of insight the father had in relation to that incident.
I also have concerns in relation to the risk of the father continuing to engage in evidence finding with the child. I am satisfied that the father will not desist in his attempts to undermine the mother's role as a parent, and in so doing, continue to involve the child in high conflict. In doing so, he fails to understand the impact of his actions upon the child's emotional well-being.
In my view, nothing turns on any aspect of the evidence regarding subsections G and H.
I am satisfied that both parents have a good attitude towards the child. I am satisfied that the mother understands her responsibilities as a parent and demonstrates that she can meet those responsibilities.
I am satisfied that the father understands his responsibilities as a parent however, due to his lack of insight he at times fails to demonstrate that he can meet those responsibilities particularly have in regards to the child's emotional well-being.
There has been family violence in the presence and hearing of the child, and that has occurred in circumstances where the mother has been a victim as a result of the father's actions.
Having regard to the father's own admissions in his affidavit I am not satisfied that he understands what is family violence, nor that he can be intimidating and aggressive.
I must make orders that would be least likely to lead to the institution of further proceedings. The orders the father seeks would, in my view, invariably lead to the institution of further proceedings.
I have a real concern that if I made orders consistent with the father's application there would be ongoing allegations made by the father and ongoing difficulties in relation to the co-parenting relationship that would cause this family to fall into dispute once again requiring the intervention by a court.
If I were to make orders that the Independent children's lawyer seeks it follows that proceedings would continue into the future. There is an enormous amount of social science research that satisfies me that children should not be exposed to ongoing conflict for any length of time.
Furthermore, having regard to the father's attitude towards supervised time in the past and his statement that any orders that are made that are different to his would be degrading I am not satisfied that an interim order requiring supervised time would serve any great purpose for this child.
Turning to the orders ultimately sought by the mother at the end of the trial I am concerned that they are orders that would ultimately fail having regard to the difficulty involved in financing such an arrangement.
Additionally, I have a real concern that if the child spent even day time with the father in Sydney there is a real risk that she would be exposed to aggression and/or violence whilst in his care. Quite plainly, the father lacks insight into this.
Furthermore, having regard to Ms W's concern that there is a real risk that the father will again raise issues about the child's upbringing and the care of the mother, any unsupervised time with him will expose the child, in my view, to repeated questions regarding the care she receives whilst living with her mother.
The mother in her case outline was seeking supervised time at relationships Australia in Town B. Accordingly throughout the trial all of the parties have had the opportunity to consider a myriad of orders ranging from an order requiring the mother to relocate with the child and thereafter the child spending substantial and significant time with the father through to a supervised order either on an ongoing basis or for an initial period of time before proceeding towards unsupervised time. In those circumstances I am satisfied that the parties have been accorded procedural fairness.
With regards to the parties proposals as the full Court made clear in Goods case,[12] if neither of the scenarios:
“Delivers an outcome that promotes the child's best interest, then the issue is at large and to be determined in accordance with the child's best interests”
[12] Goode & Goode [2006] FLC 93-286.
In making reference to the High Court decision in U & U[13], and the full Court decision of Bolithov & Cohen[14], their honours went on to note that a court could consider a proposal that is not advanced by either party, provided that the parties are recorded procedural fairness in relation to the court's proposal.
[13] (2002) FLC 93 – 112
[14] (2005) FLC 93 – 224
In weighing up the parties proposals I have regard to the need to finalise these proceedings and the need to protect this child from the risks I have set out.
The child is coming up for 12 years of age and has a desire to spend time with her father. That time should occur in a safe environment and not expose the child to any further acts of violence or conflict.
In those circumstances, I am satisfied that, provided the father commits to spending time with the child at a supervised contact centre until the child is 13 years of age then the child can spend day time with her father predominantly in Town B or indeed in Sydney if the mother is otherwise travelling to Sydney during holiday times.
In my view, this provides an appropriate balance between the safety needs and the needs of the child to maintain a meaningful relationship with her father moving forward.
Another circumstances that should be discussed is the father's concerns regarding Mr O. Mr O has an extensive criminal history dating back to 1995 with his last offence, that being of possession of a prohibited drug, on 16 September 2016.
The father says that the child is at risk in the care of Mr O and cross examined the mother at length in relation to leaving the child alone with Mr O. Indeed, when being cross-examined as to the risk involved in exposing the child to an act of violence in January 2017 and it being put to the father that it was a risk factor the father's response was “As a risk factor her husband has been charged 12 times”.
The evidence establishes that the mother and Mr O are no longer in a committed relationship however, Mr O visits Town B from time to time to spend time with his children. Furthermore, the evidence establishes that Mr O stays in the mother's home during some of that time.
There is no evidence that Mr O has harmed this child or any other child or, that Mr O has exposed this child or any other child to any of his criminal acts.
In short there was no evidence that Mr O poses a risk to these children simply because he has a criminal history
Another relevant consideration is how the mother would afford to find accommodation in Sydney and the Suburb Y area. There was no evidence submitted to the court as to the availability of accommodation or as to the affordability of accommodation.
It seems the father simply sought an order for the mother to relocate within a certain specified period of time and that thereafter, she would have to find her own accommodation and meet the ongoing obligation towards that.
The father submitted that Sydney provided a better opportunity for the child for various reasons including the weather was better as it was not so hot, there were less retail outlets having been closed in Sydney, there were better opportunities in school in Sydney. No evidence was provided to establish the truth or otherwise of any of those propositions and in those circumstances I give that evidence very little weight.
Having considered all of the matters raised in section 60CC, I am satisfied that it's in the child's best interests to remain with the mother and her step siblings in Town B.
Parental Responsibility
As a result of the findings made in relation to family violence the presumption contained in section 601DA (1) does not apply.
The evidence establishes and I find that the parents have a very poor, almost non-existent, co-parenting relationship.
Furthermore, I am satisfied that the father does not consider the mother to be a responsible parent, and indeed his submission was that the mother's judgement is questionable.
The father submitted that the mother enrolled the child in BB College “to try and get a reaction for me”. Notwithstanding the evidence that the child had been successful in having a scholarship awarded to her.
The father cross-examined the mother about setting him up with his family in relation to the incident that occurred on 1 January 2017.
The father firmly believes that the mother has been beating the child with a stick and that she is a liar and a manipulator so as to interfere with the child's relationship with the father.
In those circumstances, an order for equal shared parental responsibility would most likely lead to ongoing conflict between the parents and more than likely lead to the institution of further proceedings.
In short an order for equal shared parental responsibility is not in the best interests of this child and accordingly I will not make an order for equal shared parental responsibility.
As the child has lived her entire life with her mother and the mother has made the majority of the major long-term decisions to date without any negative impact on the child, I am satisfied that an order for the mother to have sole parental responsibility is the order that is the best interests of the child, and accordingly will make that order.
For those reasons I am satisfied that the orders I have made in the best interests of the child.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 19 July 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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