FAMILY COURT OF AUSTRALIA
Stefani & Bramble [2021] FamCA 567
File number(s): PAC 2595 of 2018 Judgment of: HANNAM J Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – PARENTING – Where at final hearing the parties and the ICL agreed on final orders that provide for the mother to hold sole parental responsibility for the child and that the child live with her – Where the remaining issue to be determined is what time, if any, the child should spend with the father – Where both the mother and the ICL contend that it is in the child’s best interests that orders be made that she spend no time with the father on the basis of the father’s history of family violence – Where findings were sought against the father relating to family violence – Where the father ultimately sought orders that would see the child spend an unspecified period of time with him supervised at a contact centre on three occasions each year – Where the Court is satisfied on the evidence that the father perpetrated physical violence towards the mother as alleged – Where it is the family consultant’s recommendation that if the Court is satisfied that the father perpetrated family violence, the child should spend no time with the father – Where the family consultant also opined that the father’s denial of family violence is a significant concern – Where in the circumstances the need protect the child from harm outweighs the benefit the child may receive from maintaining a relationship with her father – Additional final order made that the child spend no time with the father. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D
Evidence Act 1995 (Cth) s 140
Cases cited: Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268
Coulter v The Queen (1988) 164 CLR 350
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Gorman & Huffman and Anor [2016] FamCAFC 174
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108
R v Bloomfield (1998) 44 NSWLR 734
R v Phillips [1973] 1 NSWLR 275
Slater & Light [2013] FamCAFC 4
Syms & Syms [2021] FamCAFC 38
Zuen & Lhao [2020] FamCAFC 84
Number of paragraphs: 250 Date of hearing: 1-3 June 2021 Place: Parramatta Counsel for the Applicant: Ms Jowett Counsel for the Respondent: Ms Dura Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Applicant: Ln Legal Solicitor for the Respondent: Minors Family Law Solicitor for the Independent Children's Lawyer: Legal Aid Parramatta ORDERS
PAC 2595 of 2018 BETWEEN: MR STEFANI
Applicant
AND: MS BRAMBLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.The final orders made with the consent of the parties and the ICL on 3 June 2021 remain in place.
THE COURT FURTHER ORDERS THAT:
2.The child…
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- AGLC
- Stefani & Bramble [2021] FamCA 567
- Case
- [2021] FamCA 632
- Decision Date
CaseChat Overview and Summary
In *Stefani & Bramble*, heard by Hannam J, the dispute concerned final parenting orders for a child. The parties and the Independent Children's Lawyer (ICL) had agreed on orders for the mother to have sole parental responsibility and for the child to live with her. The sole remaining issue was the extent of time, if any, the child should spend with the father. Both the mother and the ICL contended that it was in the child's best interests for the child to spend no time with the father, citing the father's history of family violence. The father sought orders for supervised contact at a contact centre on three occasions annually.
The court was required to determine whether findings of family violence against the father should be made, and if so, what parenting arrangements were in the child's best interests, particularly in light of the father's alleged family violence and his denial of such conduct. The court also considered the family consultant's recommendations, which advised no time with the father if family violence was established, and noted the father's denial of family violence as a significant concern.
Hannam J found, on the evidence, that the father had perpetrated physical violence towards the mother as alleged. The court applied the paramount consideration of the child's best interests, weighing the need to protect the child from harm against the benefit of maintaining a relationship with the father. The court gave particular weight to the expert evidence, including the family consultant's opinion, and the father's failure to acknowledge his perpetration of serious coercive and controlling violence. The court concluded that the need to protect the child from the risks posed by the father outweighed any benefit from contact.
The court made final orders that the child spend no time with the father. Additionally, pursuant to section 65Y of the *Family Law Act 1975* (Cth), the mother was permitted to remove the child from Australia at her discretion for international holiday travel.
The court was required to determine whether findings of family violence against the father should be made, and if so, what parenting arrangements were in the child's best interests, particularly in light of the father's alleged family violence and his denial of such conduct. The court also considered the family consultant's recommendations, which advised no time with the father if family violence was established, and noted the father's denial of family violence as a significant concern.
Hannam J found, on the evidence, that the father had perpetrated physical violence towards the mother as alleged. The court applied the paramount consideration of the child's best interests, weighing the need to protect the child from harm against the benefit of maintaining a relationship with the father. The court gave particular weight to the expert evidence, including the family consultant's opinion, and the father's failure to acknowledge his perpetration of serious coercive and controlling violence. The court concluded that the need to protect the child from the risks posed by the father outweighed any benefit from contact.
The court made final orders that the child spend no time with the father. Additionally, pursuant to section 65Y of the *Family Law Act 1975* (Cth), the mother was permitted to remove the child from Australia at her discretion for international holiday travel.
Orders
Orders of the court
PAC 2595 of 2018
BETWEEN:
MR STEFANI
Applicant
AND:
MS BRAMBLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1. The final orders made with the consent of the parties and the ICL on 3 June 2021 remain in place.
THE COURT FURTHER ORDERS THAT:
2. The child spend no time with the father.
3. Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother is permitted to remove the child X born … 2015 from the Commonwealth of Australia at her discretion for the purposes of international holiday travel.
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
The question for me to determine is which of these proposals is proper having regard to the best interests of the child as the paramount consideration.BACKGROUND The parties who are both in their mid-thirties began a relationship in 2011. They started living together with the father’s parents (“the paternal grandparents”) in the paternal grandparents’ home sometime around late 2013 to early 2014. In October 2014 the parties moved from the paternal grandparents’ home and began renting a home (“the family home”) together. The parties’ only child was born in 2015. Throughout the parties’ relationship, apart from a period of six months taken as maternity leave, the mother has worked in a professional capacity. For a few months after first returning to work following maternity leave she worked part-time but then returned to full-time employment from January 2016. The father who has trade qualifications held various jobs throughout the parties’ relationship. When the mother returned to work in November 2015 the father ceased his employment, and asserts that he then became the child’s primary carer. The mother contends that she continued in the role of primary carer after returning to work, with significant support provided by the paternal grandparents and her mother (“the maternal grandmother”). Little ultimately turns on the different versions given by the parties as to this matter. The mother asserts that the father was violent towards her throughout their relationship and this is a significant, if not the determinative issue in the proceedings, to which I will return. Although there is a great deal of dispute about the mother’s allegations of the father’s violence it is common ground that by April 2016 the parties were no longer living together due to the conditions of an Apprehended Domestic Violence Order (“ADVO”) made against the father for the protection of the mother. The mother continued to reside in the family home while the father lived with the paternal grandparents. At this time the child was also living at the paternal grandparents’ home during weekdays and with the mother on weekends. There is also no dispute that on 7 April 2016 an incident took place between the parties which resulted in a neighbour contacting the police and the father being charged with assaulting the mother and contravening the ADVO. He was later acquitted of these charges. It appears that for the next two years the parties remained in a relationship and that following the expiry of ADVO began living together with the child as a family unit even though each depose to other incidents of family violence between them. On a night in May 2018 a further violent incident took place between the parties at the family home (“the May 2018 incident”). This event also lead to the father being charged with assault occasioning actual bodily harm and damaging the mother’s property and an interim ADVO being made for her protection. The parties separated on a final basis following this incident.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As is clear from these Reasons, this is the most significant matter in these proceedings and has been dealt with at length when considering other matters.CONCLUSION Orders sought by the parties with respect to most matters in relation to the future parenting of the child have already been made. I consider those orders to be proper and in the best interests of the child. So far as the only remaining matter in dispute is concerned, relating to the time the child is to spend with the father, as is clear from the foregoing discussion I attach particular weight to each of the primary considerations in relation to the best interests of the child and to the issue of family violence. I also consider the likely effect of change in the child’s circumstances that would be brought about by each of the party’s proposals, the practical difficulty involved in spending time with the father and the attitude to the responsibilities of parenthood demonstrated by each parent, as well as each of the other matters touched upon, as weighty factors in determining this dispute. Further, for the reasons given I attach particular weight to the evidence of the expert especially in relation to the need to protect the child from the various risks identified as being posed by the father as a result of him being a perpetrator of serious coercive and controlling violence which he has failed to acknowledge. I also consider the family consultant’s opinion concerning the way in which the child is likely to experience the particular arrangements proposed by each of the parties as weighty. I consider that the order sought by the mother relating to international holiday travel with the child is proper and in the child’s best interests having regard to the reality that the mother will be primarily responsible for the child’s future care and the long-term decision-making relating to her wellbeing. Only one slight amendment has been made to the form of the mother’s proposed order in this regard, being the insertion of the relevant provision of the Family Law Act to ensure that the mother is permitted to travel with the child as proposed, without the need to reapply to the Court. In all of the foregoing circumstances, I am satisfied that the parenting arrangement and orders proposed by the mother and supported by the ICL are proper and in the best interests of the child and accordingly, I make the orders set out at the forefront of this Judgment.
Ratio Decidendi
Legal Principle Established
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