Stockdale & Nowak

Case [2022] FedCFamC1F 460

Federal Circuit and Family Court of Australia

(DIVISION 1)

Stockdale & Nowak [2022] FedCFamC1F 460

File number(s): ADC 3653 of 2018
Judgment of: BERMAN J
Date of judgment: 11 July 2022
Catchwords:

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the parties are not able to communicate at any level – Where there is ongoing dislike and distrust between the parties – Consideration of the best interests of the child – Where the presumption should not apply – Order for sole parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Family violence – Where the father seeks a gradual increase in time to equal shared care – Where the mother opposes the child spending any time with the father - Where the child is currently in the mother’s primary care – Where the father’s time was suspended due to an incident which is now the subject of criminal proceedings - Where the father has not spent time with the child in two years – Where there are allegations of family violence – Whether the father presents as a risk to the child – Where the Family Consultant recommends a cautious approach until the criminal proceedings have concluded - Where there is a lack of evidence before the Court to determine any significant change to the child’s living arrangements – Where the child should remain in the primary care of the mother – Where the ability to maintain a meaningful relationship with the father should be preserved – Where the father should spend some supervised time with the child pursuant to s 65L of the Family Law Act 1975 (Cth).

Legislation:

Evidence Act 1995 (Cth) ss 128, 135, 136

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L, 69ZN, 69ZT

Family Law Rules 2004 (Cth) r 15.13

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.18

Cases cited:

Baglio & Baglio [2013] FamCA 105

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Dennison & Wang [2010] Fam CAFC 182

Harridge & Harridge [2010] FamCA 445

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Sigley v Evor (2011) 44 Fam LR 439

St Claire & St Clair and Ors [2013] FamCA 108

Wang & Dennison(No 2) [2009] FamCA 125

Division: Division 1 First Instance
Number of paragraphs: 278
Date of hearing: 7 – 11 March 2022
Place: City W
Counsel for the Applicant: Mr Childs
Solicitor for the Applicant: Daniel John Lawyers
Counsel for the Respondent: Ms Pyke QC
Solicitor for the Respondent: Stanley & Co Lawyers
Counsel for the Independent Children's Lawyer: Ms Horvat
Solicitor for the Independent Children's Lawyer: Georgina Parker Lawyers

ORDERS

ADC 3653 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA…

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Stockdale & Nowak [2022] FedCFamC1F 460
Case
[2022] FedCFamC1F 460
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CaseChat Overview and Summary

The case of Stockdale & Nowak involved a dispute between the parties over the parenting arrangements for their child, born in 2016. The parents, who had a short-lived relationship, separated in July 2017. The disagreement centred on the frequency and regularity of the child's time with the father, with the father claiming regular overnight visits and the mother asserting irregular and infrequent visits. The court had to address the legal issues of whether the presumption of equal shared parental responsibility should apply and what arrangements would best serve the child's best interests.

The court considered the evidence presented by both parties, including the incident in August 2017 when the father allegedly took the child to New South Wales without the mother's consent. The court also examined the father's alleged risk of harm to the child, as suggested by the independent children's lawyer. The court exercised its discretion under sections 69ZT and 69ZN of the Family Law Act 1975 (Cth) to weigh the evidence, despite objections to portions of the mother's affidavit. The court found that the father's actions, including a car crash at the child's childcare centre, raised concerns about his suitability as a parent.

In its reasoning, the court rejected the presumption of equal shared parental responsibility and proposed to grant sole parental responsibility to the mother, with an obligation to keep the father informed. The court planned to order the child to live with the mother and for the father to resume supervised time with the child, gradually increasing to unsupervised visits if supported by experts. The court's decision was based on the child's best interests, considering the primary considerations of a meaningful relationship with both parents and protection from harm, as well as the additional considerations outlined in section 60CC(3) of the Act. The court acknowledged the child's close attachment to the father but also recognised the need to protect the child from potential harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Each of the parties were represented by counsel, in the case of the mother by Queen’s Counsel. The independent children’s lawyer (“ICL”) was represented by counsel.Background The parties met in early 2016. The child was born in 2016 and is now five years of age. Whilst there is some disagreement as to the nature of the relationship between the parties, it is conceded that the relationship was short and that the parties’ relationship broke down in July 2017. Following separation, the parties attempted to agree the basis upon which the child would spend time with the father. For his part, the father contends that post-separation he saw the child on a regular basis and in particular between one and two nights each week to accommodate the mother’s employment in allied health. The mother does not agree with the father’s assessment of the extent of time that the child spent with him but rather that whilst there had been a few overnight periods, the father’s time with the child was not regular. From their separate perspectives, each of the parties considered that there should have been a consistent parenting routine rather than the uncertain and irregular basis upon which the child spent time with the father. A significant incident occurred in August 2017 when the mother alleges that the father unilaterally took the child to Q Town in New South Wales for a couple of days to spend time with his family and to coincide with Father’s Day. The father contends that the mother agreed to the child travelling and that there was to be a trade-off, namely that the father would agree to the mother taking the child to New Zealand. The mother’s position is that she did not give her consent to the father taking the child to Q Town. Each of the parties provides evidence of a different scenario. The father considers that the mother was aware of his travel plans for the child and that they regularly messaged each other which included text messages expressing mutual affection. The father highlights that on 4 September 2017, the mother met the father and the child at the airport and greeted him with an affectionate embrace. The father spent overnight time with the child on at least four occasions between 26 September 2017 and 27 October 2017. Thereafter, the focus was on the father signing the necessary application for a passport to issue for the child. There appears to have been a disagreement between the parties. The father alleges that he became concerned that the mother would not return the child to Australia and that there was a distinct possibility that the mother may reconcile with a previous New Zealand based boyfriend. The father states that he filed a travel alert request in order to prevent the mother from applying for a passport for the child without his knowledge. According to the father, a possible catalyst for the events that followed centres upon his allegation that consequent upon his refusal to sign the child’s passport application, the mother threatened that he would not see the child again.

Evidence

Evidence Before The Court

The ICL considers that the father may present an unacceptable risk of harm to the child both physically and psychologically with such a view underpinned by the assessment of the ICL that the father drove his motor vehicle either deliberately or recklessly, causing it to crash into the child’s child care centre. The evidence At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Family Law Act1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). Neither party spoke against the application of the provisions of s 69ZT of the Act. I considered that the principles pursuant to s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it was contentious. I do not consider that ss 69ZN and 69ZT of the Act removes the ability or the desirability to consider objections to affidavit evidence particularly where it would be inadmissible if the provisions of the Evidence Act were applied and its utility limited if rendered inadmissible by the application of the provisions of s 69ZT. Rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides as follows:(1)Subject to section 69ZT of the Family Law Act, the court may order material to be struck out of an affidavit at any stage in a proceeding if the material:(a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or(b) contains opinions of persons not qualified to give them. The rule differs from r 15.13 of the Family Law Rules (2004) in that r 8.18 provides for the ability to strike material out of an affidavit subject to s 69ZT of the Act. Whilst I do not consider that the current rule is without application if the provisions of s 69ZT are applied, the section does not exclude a consideration of ss 135 and 136 of the Evidence Act. Objection was taken to significant portions of the mother’s trial affidavit filed 15 October 2021. The objections that were upheld represent a significant proportion of the entirety of the mother’s trial affidavit. The objectionable material was struck out on the basis that it was unfairly prejudicial to a party and of limited or no probative value. It is unlikely that the mother’s trial affidavit had been settled by counsel. Whilst a similar objection process was not undertaken in respect of the father’s trial affidavit, it was also replete with examples of argument, submission, rank hearsay or without probative value. As discussed, there was significant focus on the incident which resulted in the father’s car colliding with the child care centre. The father has been charged and it appears likely that there will be a trial heard in the District Court in late 2022. An application was made for a certificate pursuant to s 128 of the Evidence Act. There was no opposition.

Decision

Reasons for decision

Given that parental responsibility is informed by the best interests of the child and taking into account the evidence, the presumption that the parties should have equal shared parental responsibility for the child is rejected and I propose to order that the mother have sole parental responsibility albeit with an obligation to keep the father informed.Conclusion I propose to order that the mother have sole parental responsibility and that the child live with her. The father will resume spending time with the child, initially under the supervision of a Court Child Expert appointed pursuant to s 65L of the Act and then if supported, for a further six periods of time, supervised by an appropriate expert or in default by a Children’s Contact Service. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

I propose to adopt the following approach:(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;(5)Have regard to the additional considerations under s 60CC(3) of the Act;(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment. Parenting considerations The parties are not agreed as to parental responsibility. The separate proposals of the parties even at their most basic represents an outcome that on the mother’s case would see there being no relationship with the father going forward or on the father’s case, the graduated reintroduction of time such that the child’s care would be shared between the parties. Whilst the father’s proposal contemplates shared care, it was apparent that his immediate focus was to resume time with the child on some basis. The mother does not consider that the father should have a meaningful relationship with the child and that attempts to renew or restore a relationship would not ultimately be in the child’s best interests. A careful consideration of the evidence would suggest that despite the protestations of the mother, the child enjoyed a close attachment and beneficial relationship with the father. Whilst the parties are not agreed as to the parenting arrangements following separation and up to and including the commencement of court proceedings, it is uncontroversial that the child spent time with the father both in the presence of the mother but also by arrangement unsupervised, thereby enabling the mother to attend to her employment. The extent of the relationship with the father was observed by Ms G in her first report. It is obvious that in subsequent court proceedings the first report was of assistance and formed at least part of the justification for an increase in the father’s time. I do not accept the mother’s denial that she only facilitated time because she was fearful of the father if she did not do so. It is likely that part of the mother’s motivation from 2017 to 2019 was in the hope that the parties may be able to reconcile their differences. The tenor and content of the text messages forwarded by the mother to the father invite a finding that whatever other concerns the mother may have had about the father, part of her motivation in ceasing the father’s time with the child was her concern that the father had commenced a new relationship.