Suris & Suris

Case [2021] FedCFamC1F 1

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Suris & Suris [2021] FedCFamC1F 1   

File number(s): BRC 1193 of 2019
Judgment of: CAREW J
Date of judgment: 2 September 2021
Catchwords:

FAMILY LAW – CHILDREN – Unacceptable risk of harm – Where the mother and the father both allege the other parent is an unacceptable risk of harm to the children – Where children are currently in the care of the mother and the evidence reflects that the children are doing well – Where it is found that the mother does not present an unacceptable risk of future harm – Where the father has demonstrated a complete lack of insight into the impact of the children being exposed to the parental conflict and his fixated ideas – Where the impact of the father’s conduct on the children leaves no doubt that he presents an unacceptable risk of emotional and psychological harm to the children that cannot be ameliorated by supervision.

FAMILY LAW – CHILDREN – What parenting order is proper – Where the children would like to spend time with their father but recent attempts caused distress – Where the children are well settled in the care of the mother who has developed a child focus perspective – Where the mother is to have sole parental responsibility, the children are to live with the mother and the father is restrained from having any contact or communication with the children unless initiated by the children.

FAMILY LAW – PROPERTY – Consent Order – Where the father sought to set aside a consent order by reason of duress, an assertion that his compensation money should not have been included in the property pool, the mother’s failure to disclose relevant information, fraud and incompetent legal representation – Where the father failed to establish a ground to set aside the consent order.   
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

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

Cases cited:

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Baghti & Baghtiand Ors [2015] FamCAFC 71

Burge & Burge [2015] FamCA 178

Briginshaw v Briginshaw (1938) 60 CLR 336

Campbell v Superannuation Complaints Tribunal (2016) FLC 93-724

Clifton & Stuart (1991) FLC 92-194

Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24

Holland and Holland (1982) FLC 91-243

Johnson & Page (2007) FLC 93-344

In the marriage of P and P (1985) FLC 91-605

In the marriage of T and T (1984) FLC 91-588

Lane & Lane (2016) FLC 93-699

M v M (1988) 166 CLR 69

Malpass v Mayson (2000) FLC 93-061

N and S and the Separate Representative (1996) FLC 92-655

Suiker and Suiker (1993) FLC 92-463

Thorne v Kennedy (2017) FLC 93-807

Williams v Williams (1985) 61 ALR 215

Division: Division 1 First Instance
Number of paragraphs: 152
Date of hearing: 28-30 July 2021 and 2 August 2021
Place: Brisbane
Counsel for the Applicant: Mr…

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Suris & Suris [2021] FedCFamC1F 1
Case
[2021] FedCFamC1F 1
Decision Date

CaseChat Overview and Summary

In the matter of Suris & Suris, the Federal Circuit and Family Court of Australia was tasked with determining the appropriate parenting arrangements for the three children of the parties following their separation. The father, who had been diagnosed with PTSD and received compensation payments from the Australian Defence Force, sought to retain primary custody of two of the children while the mother contested this arrangement. The court needed to decide whether the parents had the capacity to make joint decisions about major long-term parenting issues and if the mother presented an unacceptable risk of harm to the children due to alleged family violence and substance abuse. The court found that due to the history of disputes and lack of communication between the parents, it was not in the best interests of the children for the parents to have equal shared parental responsibility. Additionally, the court found that the father had not established that the mother presented an unacceptable risk of harm to the children.

The court considered the evidence presented by both parties and ultimately found that the father had failed to establish that the mother presented an unacceptable risk of harm to the children by reason of alleged family violence, alcohol abuse, drug abuse, psychological abuse, or physical abuse. The court found that while there had been incidents of yelling and arguing between the parents, there was no evidence to support the father's allegations of family violence or substance abuse by the mother. The court also found that the father had breached court orders by publishing material in contravention of the Family Law Act and recording interactions with the family report writer and his children. The court referred the matter to the appropriate authorities for consideration of possible offences.

In conclusion, the Federal Circuit and Family Court of Australia found that it was not in the best interests of the children for the parents to have equal shared parental responsibility and that the father had not established that the mother presented an unacceptable risk of harm to the children. The court made orders for the children's care, protection, and financial security, as well as for the referral of the parties to appropriate authorities for consideration of possible offences.

Orders

Orders of the court

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Background

Background to the litigation

It will be helpful to set out some background to this matter and identify the applicable legal principles before considering the issues.BACKGROUND The mother and father commenced a relationship in 2001 and married in 2003. They separated in May 2017. The parents have three children together. X was born in 2004, Y was born in 2006 and Z was born in 2008 (“the children”). The mother is 44 years of age and works in two service industries. The father is 51 years of age and is unemployed. He was a member of the Australian Defence Force (“ADF”) from 2009 until 2017. The father was diagnosed with post-traumatic stress disorder (“PTSD”) in or about July 2017 and medically discharged from the ADF in September 2017. He received three lump sum compensation payments between 31 July 2017 and 12 February 2019 totalling $653,140 and receives a veteran’s disability pension of $900 per week. The father has two adult children from a previous relationship from whom he has been estranged for about 20 years. Upon joining the ADF in 2009 there was almost no contact between the father and his family for about three months and then minimal contact for the following 12 months. The father was deployed overseas on three occasions during the marriage. The first deployment was to Country C from 28 August to about 12 November 2010. The second was to Country D for three months in 2012 and the third was to Country J from 25 February 2016 to 21 March 2016. Throughout his service, the father was stationed in Brisbane which was about two hours’ drive from the former matrimonial home. The father also spent extended periods in other Australian towns throughout his service. The mother contends that the father was absent from home for six months per year throughout his service with the ADF. Whether or not his absences were for this long, it is common ground that he was frequently absent because of his work. After the parents’ separation in May 2017, the children initially lived with the mother and shortly thereafter in a week about arrangement between the parents’ households until 2018. The father retained the child, Y, after the Easter school holidays in 2018 and unilaterally changed her school from L School to N School. The child, X, commenced to live full time with the father after the September 2018 school holidays. In late October 2018 the father also retained the child, Z. The mother commenced proceedings in the Federal Circuit Court of Australia on 2 February 2019 and despite an interim order made by consent on 28 May 2019 that Y and Z spend each alternate weekend with the mother, they did not spend regular time with her. X voluntarily returned to live with the mother in October 2019. On 28 October 2019 a further interim order was made by consent giving effect to that arrangement and for Z to spend time with the mother ‘two weekends out of three’ and for Y to spend time with the mother as recommended by Ms G, a court appointed psychologist. Time did not occur in accordance with the order and the father failed to engage with Ms G as ordered.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I turn now to consider the particular issues identified as requiring determination. DO THE PARTIES HAVE THE CAPACITY TO MAKE JOINT DECISIONS ABOUT MAJOR LONG TERM PARENTING ISSUES? As noted earlier in these Reasons, there is a rebuttable presumption in parenting proceedings that it is in the best interests of children for their parents to have equal shared parenting responsibility for making decisions about major long term parenting issues relating to matters such as schooling, medical, religion etc. If such an order is made it requires the parents to make such decisions jointly. Neither parent has sought an order for equal shared parental responsibility. The ICL recommends against such an order. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. In this case, leaving aside the various allegations made by each parent against the other, that each has been the victim of family violence perpetrated by the other, it is common ground that the children have been exposed to yelling and arguing between the parents causing the children to become fearful. Such conduct on the part of the parents falls within the definition of family violence. Accordingly, the presumption does not apply. In my view it is not in children’s best interests for the parents to have equal shared parental responsibility in circumstances where they do not communicate at all and would have no ability to make joint decisions. There has been a history of dispute about schooling and medical matters which has required Court intervention. An order for equal shared parental responsibility would more likely than not result in further Court proceedings and delay the making of decisions about major long term issues affecting the children. DOES THE MOTHER PRESENT AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF ALLEGED FAMILY VIOLENCE AND/OR ALCOHOL ABUSE AND/OR DRUG ABUSE AND/OR PSYCHOLOGICAL ABUSE AND/OR PHYSICAL ABUSE? The father bears the onus of establishing that the mother presents a future risk of harm to the children which is unacceptable.Alcohol and/or drug abuse The father refers to one incident a number of years ago where he contends the mother drove her car while intoxicated when the child, X, was with her. The mother concedes driving the car with X after having consumed “a few drinks” but denies she was intoxicated. The father also alleges that the mother drank to excess when he was in the ADF. The mother conceded to the first family report writer, Mr E on 17 July 2019 that she drank more at that time e.g. perhaps three glasses of wine in the evening. The mother told Mr E that at the time of her interview she would have a drink on weekends and perhaps a glass of wine after work during the week. During her interview with Mr E, Y and Mr E had the following exchange:When I asked [Y] if anything needed to change with her mother, she responded, "if [the mother] stopped drinking". [Y] then said that when her mother drank around people, she seemed more nice and loving but when there was no one else around, she would yell. [Y] said that she used to see her mother drink a glass of wine in the morning and in the afternoon, "three-four glasses". As to how often she witnessed this, [Y] responded, "nearly every day".

Ratio Decidendi

Legal Principle Established

Ultimately, this is not a case where the justice of the case required the admission of the affidavit at this late stage of proceedings. Referral of parties to appropriate authorities for consideration of investigation as to possible offences During the trial it became evident that the mother may well have received a single parent pension (to which she was not entitled) during the period 2010 and 2017 while still married and living with the father (although for the duration of this period the father was a member of the ADF and often away from the home). The mother concedes having access to the father’s bank account in his absences and working in a service industry for at least part of the relevant period. During the relevant period, the mother concedes paying off a Motor vehicle 1 and travelling to Asia for cosmetic surgery. The mother was provided with a s 128 certificate in relation to certain evidence given by her during the proceedings and as a consequence, that evidence and evidence of any information, document or thing obtained as a direct or indirect consequence of the mother giving evidence cannot be used against her in any proceedings in an Australian court. However, there were documents produced by the father that are independently relevant to the matter that could be provided to the appropriate authorities together with that part of the mother’s affidavit in which she sets out the date of her marriage and separation. In relation to the father, it appears he has breached Court orders restraining him from publishing material in contravention of s 121 of the Act. Indeed on 18 March 2020, he was provided with a copy of that section by another judicial officer and advised to obtain legal advice. Subsequent to the order made on 18 March 2020 directing the father to remove various social media posts and comments, he published the following material: (a)A social media post made to a website entitled “…” and dated 7 April 2020 being a picture of the father holding a photograph of his children (Exhibit 5);(b)A social media post made to a website entitled “…” and dated 8 April 2020 which discloses copies of text messages the children have sent to the father (Exhibit 5);(c)Provided commentary for an article entitled “…” that was published on 8 April 2020 which discloses issues in these proceedings; (d)Participated in a podcast that was published in September 2020 where he discussed these family law proceedings and the opinion of experts;(e)A film shown at a public event at a cinema on … February 2021; and(f)A social media post made on or after 1 July 2021 discussing these proceedings. During the proceedings, it also became apparent that the father may have contravened r 1.19 of the Family Law Rules 2004 (Cth) (as at 1 September 2021, r 15.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) by recording his interaction with Ms M, the family report writer, and his three children during the family report interviews (Exhibit 3).