Tarelli & Langley

Case [2023] FedCFamC1F 386

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tarelli & Langley [2023] FedCFamC1F 386

File number(s): PAC 4311 of 2014
Judgment of: BERMAN J
Date of judgment: 18 May 2023
Catchwords:

FAMILY LAW – PARENTING – With who a child lives with and spends time with – Where the father engaged in overt family violence up to the parties’ separation in 2014 – Where the mother has PTSD as a result of the family violence – Where the mother was the primary carer up until 2017 – Where Orders were made in 2017 reversing the primary care arrangements – Where the child has lived with the father since 2017 and not spent time with the mother – Where further Orders were made in 2020 to again reverse the primary care arrangements – Where the handover was demonstrably unsuccessful – Where the single expert opined the failed handover was considered to be a cruel procedure, traumatic and likely solidified the child’s negative perception of the mother – Where the mother seeks orders that the child live with her and spend virtually no time with the father – Where the mother, by reason of her unresolved PTSD, cannot spend time with the child should he remain living with the father – Where a third change in the primary care is likely to cause the child extreme distress and a deleterious mental health outcome – Where there is scant evidence as to the process required to effect a transition or how to deal with the psychological and emotional sequelae that would likely result – Where the evidence supports a finding that there is no viable process to effect a change in the child’s primary care – Where there is no evidence that the mother could cope with spending time with the child if he remains living with the father – Orders.  

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where the parties cohabitated for four years – Where the mother made significant financial contributions – Where the maternal grandmother has also made significant financial contributions on or for the behalf of the mother – Where the father has the sole care of the child – Where the mother is likely unable to return to paid employment arising from her PTSD – Consideration of family violence – Orders.
Legislation:  Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a),60CC(3), 90SM, 90SM(4)(a), 90SM(4)(b), 90SM(4)(c), 90SF
Cases cited:

Baglio & Baglio [2013] FamCA 105

Beckham & Desprez [2015] FamCAFC 247

Bevan & Bevan (2013) FLC 93-545

Blanding & Blanding [2016] FamCAFC 21

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Dickons & Dickons [2012] 50 Fam LR 244

Gosper & Gosper (1987) FLC 91-818

Harridge & Harridge [2010] FamCA 445

Jabour & Jabour (2019) FLC 93-898

JEL & DDF (2001) FLC 93-075

M v M (1988) 166 CLR 69

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513

N & S & the Separate…

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AGLC
Tarelli & Langley [2023] FedCFamC1F 386
Case
[2023] FedCFamC1F 386
Decision Date

CaseChat Overview and Summary

The case of Tarelli & Langley involves a dispute between the mother and father of a child, primarily concerning the child's primary care and the extent of the mother's involvement in the child's life. The case was heard in the Family Court of Australia. The mother has been unable to spend time with the child since 2017 due to her PTSD, which is triggered by the father's continued involvement and primary care. The father has pleaded guilty to multiple counts of assault and was sentenced to an Intensive Correction Order. The mother has been successful in obtaining an Apprehended Domestic Violence Order, which expired in mid-2022. The father seeks sole parental responsibility, for the child to live with him, and for the mother's time with the child to be supervised. The mother initially sought the child to live with her and spend four hours per month with the father, but now seeks the child to spend time with the father as determined by the Court.

The court was required to decide on the division of property between the parties and the best interests of the child concerning parental responsibility and time spent with each parent. The court had to consider the mother's PTSD, the father's history of family violence, and the child's best interests in determining whether the mother should have primary care or if the father should retain it. The court also had to consider the child's relationship with each parent and the potential harm or benefit of contact with each parent.

The court found that the father had not supported the child's relationship with the mother and had not informed the child that he would be living with the mother. The court accepted the evidence of the mother's PTSD and found that the father was not disposed to supporting the child's relationship with the mother. The court considered the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case. The court found that there was a tension between the potential risk to the child of him remaining in his father’s home and the potentially damaging sequelae that the child may experience if he is removed from the father’s primary care to the mother’s care.

The court decided that the property of the parties should be divided as 90/10 in favor of the mother. The father was entitled to 10% of the net pool, which amounted to $106,808. The court ordered the mother to pay a settlement sum of $51,308 to the father. The mother was to have 60 days to pay the settlement sum to the trust account of the father's solicitor. The court made orders for the mother to refinance the mortgage and pay out the outstanding council and water rates to the exoneration of the husband. If the mother was unable to refinance, the court conceded that the Suburb C property was to be sold.

In conclusion, the court decided in favor of the father retaining primary care of the child, with the mother having supervised contact. The court ordered the division of property between the parties as 90/10 in favor of the mother, with the mother paying a settlement sum to the father. The court considered the best interests of the child in making its decision, taking into account the mother's PTSD, the father's history of family violence, and the child's relationship with each parent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother has been unable to countenance spending time with the child since 8 September 2017, predominantly because the mother’s PTSD is triggered and exacerbated by the father’s continued involvement and primary care. It is not a contention of the father that but for the PTSD the mother would be unable to have a relationship with the child nor does he suggest that the mother would present as a risk to the child.BACKGROUND I adopt the detailed procedural and historical chronology as set out by Henderson J in Tarelli & Langley (No. 4) [2020] FamCA 1095. The circumstances of the parties have not changed significantly since the hearing before her Honour and the father’s appeal on 5 July 2021. The father pleaded guilty to multiple counts of assault and entered into a statement of agreed facts presented to the Court. The father was sentenced in 2020 to a period pursuant to an Intensive Correction Order (“ICO”). The father did not spend any time in prison but rather served the ICO within the community. It is not disputed that the ICO was discharged in or about early 2020. The mother was successful in obtaining an Apprehended Domestic Violence Order (ADVO) which named her as the protected person. That ADVO expired in mid-2022. The father continues to reside with his partner Ms S, a relationship now of about seven years duration. The child has lived with the father and Ms S since 8 September 2017. The child has not spent any effective time with the mother since that date. The father and Ms S continue to parent their daughter, BD. For her part, the mother has continued with ongoing therapeutic assistance with an apparent focus of better enabling her to ameliorate the more florid symptoms associated with her diagnosis of PTSD. In particular, the mother seeks to reconcile that even if she is successful in resuming the primary care of the child that the child would need to spend more time with the father and Ms S than the few hours per month as contemplated by the mother in the orders she seeks.PROPOSALS OF THE PARTIES The father seeks the following orders:-(1)That the father have sole parental responsibility; (2)That the child live with the father;(3)That the child spend time with the mother as determined by the Court in accordance with her own wishes but that the mother’s time with the child be supervised for the first six months after the making of this order at a Contact Centre and thereafter, as recommended by the single expert Professor TT; and(4)That the Suburb C property be sold and following the discharge of the mortgage loan, conveyancing costs, costs of sale and agent’s commission and adjustments, the balance be divided equally between the parties. The mother initially sought that the child live with her and spend four hours per month with the father. The mother now seeks that after the expiration of six weeks from the date of the order, the child shall spend such time with the father as determined by the Court. Such an order is problematic in that it provides limited assistance to the Court but leaves the eventual outcome at my discretion. I consider that such an approach is problematic in that the exercise of my discretion is informed by the evidence not my personal or preferred outcome.

Evidence

Evidence Before The Court

Neither the father nor the ICL pressed for either Dr G or Dr AY to be called for cross examination.THE EVIDENCEThe father The father confirmed that he remains in a committed relationship with Ms S which commenced in late 2016. The father and Ms S are the parents of BD who was born in 2018. Consequent upon an Order by Justice Foster on 8 September 2017, the child came into the father’s primary care. The father has enrolled the child in a public school in Suburb BA. At the time of the hearing, the child was in year four. Ms S takes the child to school most mornings. The father conceded that whilst the parties were living together, the mother was the primary carer although he had some doubts about her parenting abilities. The father conceded that he had not spent much time with the child whilst the parties lived together although he considered that the mother had tried to minimise the extent of the child’s relationship with the father. The father was shown a text message sent by him to the mother in 2013 which extolled the mother’s virtues as a good parent to the child. (“Exhibit 1”) The father was asked whether he was aware that according to Ms S, in January 2021 the child drew a picture of the mother on a piece of paper and included the word “loser”. [2] According to Ms S, the child then taped the mother’s picture to his boxing bag and punched it repeatedly telling Ms S that it helped him feel better.[2] Affidavit of Ms S filed 31 May 2022, paragraph 73. The incident observed by Ms S occurred after the distressing attempt to have the child transition from the father’s care to the mother’s on 1 January 2021, pursuant to the Orders made on 18 December 2020. The father said that he did not see the child put a picture of the mother on the punching bag but when he was informed by Ms S of the child’s conduct, he then spoke to the child. The father could not elaborate on the manner in which he spoke to the child nor the precise content other than it was the wrong thing to do. The father’s evidence was unconvincing and it is a reasonable finding that the father was not disposed to supporting the child’s relationship with the mother. The father conceded that he did not tell the child that consequent upon the 2020 Orders, he would live with the mother. The father considered that it was unnecessary given the involvement of Mr M on 23 December 2020. The father agreed that Ms S was demonstrably upset about the change of the child’s care and it would have been likely that the child would have picked up on her distress and upset. A report that the child was at risk of serious harm was made to the Department for Communities and Justice prior to the child being handed over to the mother. Exhibit “2” in the proceedings is correspondence from the father’s counsel, Mr John Shaw, to the Crown Solicitors Office advising that the father intended to appeal the Orders made on 18 December 2020 and that:-In the circumstances, my instructions are that no steps will be taken to effect a changeover of the child on 1 January 2021 from the care of my client to the care of the respondent mother. This means that it would be necessary for the Secretary of the Department of Communities & Justice to retain sole parental responsibility until the proposed Appeal has been heard and determined.

Decision

Reasons for decision

Accordingly, the property of the parties are to be divided as to 90/10 in favour of the mother.CONCLUSION The net property available for division is $1,068,088. At 10 per cent of the net pool the father is entitled to the sum of $106,808. However, he retains the following assets:- The mother is to pay to the father a settlement sum of $51,308. It is reasonable that she have 60 days to pay the settlement sum to the trust account of the father’s solicitor. The mother will refinance the mortgage and pay out the outstanding council and water rates to the exoneration of the husband. If she is unable to refinance, the mother concedes the Suburb C property is to be sold. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

I accept the evidence of Mr M to be reliable. PARENTING CONSIDERATIONS Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21, where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, the Court now should focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case. In Cotton & Cotton (1983) FLC 91-330, Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at 78,252:-…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. … In Sigley & Evor [2011] FamCAFC 22, the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:- The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’. As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “…a chance of a meaningful relationship…which is beneficial to the child” was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”. The child has lived with the father for almost six years. The only contact that has occurred between the child and the mother was as a result of the assessment process undertaken by Professor TT and the contact between the child and the maternal grandmother at the failed handover on 1 January 2021. It is difficult to assess the relationship between the mother and the child but demonstrably there is no current physical relationship that exists and it is apparent from the report of the Psychiatrist, that any emotional relationship and attachment is at best, tenuous. There is a tension between the potential risk to the child of him remaining in his father’s home given that the father has been found guilty of significant and entrenched family violence perpetrated against the mother whilst they were together and the overwhelming distress and potentially damaging sequelae that the child may experience if he is removed from the father’s primary care to the mother’s care particularly given that at present, the mother is not able to contemplate the child spending anything other than limited time with the father and his family.PRINCIPLES RELATING TO PARENTING