Tarlon & Scalera

Case [2022] FedCFamC1F 265

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tarlon & Scalera [2022] FedCFamC1F 265

File number(s): DNC 506 of 2015
Judgment of: BERMAN J
Date of judgment: 26 April 2022
Catchwords:

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties agree on equal shared parental responsibility – Best interests of the child considered - Where there is no reason to reject the presumption.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Where the child is in the mother’s care and had not seen the father for a significant period of time until recent interim orders resumed time spending – Where the father originally sought equal time but now seeks orders to enable a relationship to be maintained with the child – Where the mother originally opposed any time spending but is now prepared to support the father’s relationship with the child but seeks a cautious approach to any significant increase in time – Where the child has Autism Spectrum Disorder – Where allegations of abuse were investigated and concluded – Where there is no evidence that the father presents as a risk to the child – Where the mother has relocated with the child to Adelaide and the father is prepared to relocate to Adelaide – Where the father and child have a positive relationship which should be fostered – Where there should be a gradual increase in the father’s time with the child – Orders 

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 69ZN, 69ZT
Cases cited: Harridge & Harridge [2010] FamCA 445
Division: Division 1 First Instance
Number of paragraphs: 169
Date of hearing: 22 – 24 November 2021  
Place: Heard in Adelaide, delivered in Melbourne
Counsel for the Applicant: Mr Livingstone
Solicitor for the Applicant: Maley Barristers & Solicitors
Counsel for the Respondent: Ms Farmer
Solicitor for the Respondent: Withnalls Lawyers

ORDERS

DNC 506 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR TARLON
Applicant
AND:

MS SCALERA
Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS:

1.That the current parenting orders be discharged.

2.That the parties have equal shared parental responsibility for X born in 2013 (“the child”).

3.That the child shall live with the mother.

4.That the child shall spend time with the father as follows:

(a)from 10.00 am to 4.00 pm each Saturday for the period concluding 7 May 2022;

(b)as and from Friday 13 May 2022 from the conclusion of school on Friday to 4.00 pm on Saturday and each alternate weekend thereafter;

(c)as and from 24 June 2022 from the conclusion of school on Friday to 4.00 pm on Sunday and each alternate weekend thereafter;

(d)as and from 5 August 2022 from the conclusion of school on Friday to the commencement of school on the following Monday and each alternate weekend thereafter;

(e)as and from…

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AGLC
Tarlon & Scalera [2022] FedCFamC1F 265
Case
[2022] FedCFamC1F 265
Decision Date

CaseChat Overview and Summary

The matter of Tarlon & Scalera involved a dispute between the parties regarding the care and custody of their child. The father sought shared care arrangements, while the mother contested his ability to provide consistent and meaningful parenting. The Family Court of Australia was tasked with determining the best interests of the child, considering various factors such as the benefit of maintaining a relationship with both parents and the need to protect the child from harm. The court had to decide whether to grant the father's request for shared care and whether the mother's concerns about the father's past conduct and substance use were justified.

The court addressed several legal issues, including the application of the Family Law Act 1975 (Cth) provisions regarding shared parental responsibility and the best interests of the child. The court also considered the evidence provided by both parties, including affidavits, expert reports, and witness testimonies. The primary considerations under section 60CC(2) of the Act, such as the benefit of a meaningful relationship with both parents and protection from harm, were weighed alongside additional considerations under section 60CC(3) of the Act. The court had to determine whether the father's past conduct and substance use issues posed a risk to the child and whether the father's intentions to relocate and maintain a relationship with the child were genuine.

The court found that both parties recognised the importance of the child maintaining a relationship with the father. Although the father's past conduct and substance use were concerning, there was no evidence to suggest that he posed a physical risk to the child. The court noted the father's intention to relocate to Adelaide to be closer to the child, which was seen as a positive step towards maintaining a meaningful relationship. The court decided to order equal shared parental responsibility for the child, with the father's time gradually increasing. The court also imposed conditions to ensure the child's safety, including a requirement for the father to provide three months' notice before taking the child overseas. The court aimed to balance the child's need for stability and the importance of both parents in her life.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For his part, the father initially sought that the care of the child should be shared between the parties however, he conceded that he wanted orders that would enable him to resume and thereafter maintain a meaningful relationship with the child. In doing so, the father recognised that his stated commitment to the child would require him to relocate from City C to Adelaide. BACKGROUND The father was born in 1985 and is 36 years of age. As at the date of the hearing, the father was not in permanent employment in circumstances where he was travelling between City C and Sydney to provide emotional and physical support for his brother who at the time was undergoing medical treatment. The father has acquired the necessary skill set to work in the marine industry. It is the father’s evidence that subject to the orders that are made, he intends to relocate to Adelaide to be proximate to the child. The mother was born in 1985 and is 36 years of age. She has a postgraduate degree and is pursuing another. It is anticipated that the mother will complete her current studies in late 2022 and subject to the needs of her five children, she intends to pursue further relevant training opportunities. The parties married in 2008 and separated in January 2013. Following the birth of the child in 2013, the parties reached an agreement that initially the father would spend time with the child on two set times per week, being Tuesday evenings and Friday mornings. There is significant disagreement between the parties as to the extent to which the father would request to spend time with the child where the mother alleged that the father failed to attend and on the occasions that he did, was often under the influence of alcohol. The father contends that the mother resisted the father’s attempts to see the child. The mother re-partnered with Mr D in 2013. The mother and Mr D spent eleven weeks in Europe in 2014. The mother and Mr D married in 2015. The mother and Mr D travelled with the child to Country E for extended periods in 2015, 2017 and in early 2018. In December 2016, the child was diagnosed with sensory processing difficulties suggestive of Autism Spectrum Disorder (“ASD”). It appears that across 2017 the father spent only occasional time with the child. In February 2018, the parties agreed to the father spending weekly time with the child. Following orders made by consent on 15 October 2018, the father spent time with the child supervised by Ms F, a psychologist who was assisting the child’s ASD management. Ms F supervised the father’s time with the child on two occasions. On 7 April 2018, the mother received a text message from a mobile number that was ultimately traced to the father’s brother, Mr G, stating “Bullets are fucking cheap”.[1][1] Affidavit of the mother filed 22 October 2021, paragraph 158. The mother alleges that following four attempts to redial the mobile number, the father answered the phone and made a threatening remark. In early 2018, the mother applied for a Domestic Violence Order which was granted on an interim basis with further consideration of the matter adjourned to 30 April 2018. On that date, an order was made that the father was not to come into contact with the mother, the child, one of the mother and Mr D’s children or Mr D. The effect of the order was that it prevented the child spending time with the father.

Evidence

Evidence Before The Court

The mother relies upon the following documents:(1)Amended Response to Initiating Application filed 26 October 2021;(2)Trial affidavit of the mother filed 22 October 2021;(3)Affidavit of Mr D filed 22 October 2021;(4)Affidavit of Ms F filed 22 October 2021; and(5)Family Report of Mr K dated 27 May 2021.THE EVIDENCE At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth). Neither party spoke against the application of the provisions of s 69ZT of the Act. I considered that the principles of 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 is contentious. There was some consideration of objections to affidavit evidence. Each of the parties relied upon affidavits which were appropriately confined to the significant issues in dispute between the parties. The father The father’s evidence is that he intends to relocate to Adelaide given that the mother has now abandoned her original plan to relocate overseas with the child. The father did not have any firm plans for his relocation to Adelaide and had not obtained employment but was confident of his employment prospects. There was some uncertainty as to the extent of time that the father would remain in Sydney in order to facilitate and support his brother’s medical treatment. The father accepted, at least in part, the mother’s complaint that his involvement with the child had been inconsistent. Whilst the father denied that his ability to parent and spend time with the child was as a result of alcohol and marijuana use and abuse, he did concede that prior to 2019 he did not commit to spending regular time with the child. The father acknowledged that various agreements had been reached between the parties which were not comprehensively undertaken however, he highlighted that his lack of contact with the child was in part exacerbated by the lengthy periods of the child being taken overseas by the mother and Mr D. The father was asked to consider the mother’s concerns that the child exhibited separation anxiety and was reluctant to transition into the father’s care. The father was candid in his acceptance that there were occasions when the child was not prepared to separate from the mother and when it was apparent to him, he would leave without incident. Paragraphs 99 to 145 inclusive of the wife’s trial affidavit filed 22 October 2021, provide a comprehensive history of the interaction of the parties and the child. To a significant degree, the father did not cavil with the mother’s description although he was not able to provide comment as to the mother’s purported observations of the child’s presentation after having spent time with him.

Decision

Reasons for decision

I propose to put in place orders that would provide for the child to remain on the Family Law Watchlist for a period of twelve months, with the parties restrained from removing or attempting to remove the child from the Commonwealth of Australia without the written consent of each other but that thereafter each of the parties will be permitted to take the child overseas subject to the provision of three months’ notice. Such an order will enable the child’s circumstances to be settled for a minimum period of 12 months and thereafter enable the child to travel overseas but give each of the parties an opportunity to bring an application if a concern arises.CONCLUSION I propose to order that the parties each have equal shared parental responsibility, with the child’s time with the father to gradually increase such that as and from the commencement of the child’s third school term, the child spend time with the father from the conclusion of school on Friday to the commencement of school on the following Monday and each alternate week thereafter and one half of all school holiday periods. 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 CONSIDERATIONSMeaningful relationship The parties are agreed as to equal shared parental responsibility for the child. The proceedings are not complex and to a significant degree the parties have each retreated from their previously entrenched position as a result of the s 65L report. The interim orders represent a significant concession by the mother that there should be a resumption of time on an unsupervised basis. That does not mean that the mother is not sceptical as to the extent to which the father is prepared to resume and maintain a relationship with the child but absent that consideration, the mother accepts that the child loves her father and maintaining a relationship with him is of value. For his part, the father has retreated from his primary position of equal time and now seeks only an order that would enable a relationship to be maintained. He is hopeful that if he can demonstrate a significant change in attitude and maintain an ongoing relationship then the parties should be able to reconcile their differences and reach a consensus. I consider it proper to make a finding that each of the parties see the advantage to the child in the father maintaining a substantial relationship with her. Orders do not need to be considered as optimal but rather should enable each of the parties to maintain an important, substantial and parentally involved relationship with the child. In this case, there is some level of complication arising from the unilateral relocation of the mother and her family to Adelaide. Having said that, the father is now accepting of the relocation and it is his intention to live in Adelaide in order to be more proximate to the child.Is the child at risk The evidence did not substantiate any allegation that the father presents as a physical risk to the child. The 2019 investigation as to whether the father engaged in inappropriate conduct with the child was satisfactorily concluded in favour of the father. The unfortunate consequence of the allegations directed against the father and the subsequent investigation was a hiatus in the father spending time with the child over two years.