FAMILY COURT OF AUSTRALIA
| THEOPHANE & HUNT (FINAL PARENTING ORDERS) | [2014] FamCA 1038 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where father exhibits anti-social personality traits – Where Court considered the likely future impact of father’s anti-social personality traits upon the child – Where family report writer assessed the risk of emotional harm to the child as being very high – Where this aspect of the report writer’s evidence was unchallenged – Where family report writer also raised a number of concerns including those relating to the child being exposed to extensive parental conflict and the father’s complete contempt for the child’s other attachments – Where the Court accepted the family report writer’s evidence – Where Court satisfied there is a real risk of harm to the child posed by the father’s personality traits. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family violence – Where mother argued continued interaction with the father would adversely affect her parenting capacity – Where court noted such proposition is not fanciful – Where mother has previously attacked the father whilst experiencing a dissociative episode – Where father is presently committed to stand trial on six charges of rape of the mother, together with one charge of grievous bodily harm – Where interim orders previously in place – Where father has previously withheld the child from the mother’s care in breach of orders – Where father’s time that he would otherwise spend with the child has been suspended since May 2014 – Where parties agreed the matter needed to proceed to trial rather than continue to await the outcome of the father’s criminal proceedings – Where Court considered the likely effect on the mother and likely consequences of such, of continued interaction between her and the father in relation to the child – Where report writer has grave fears for the mother’s mental health if the father is allowed to remain involved in the child’s life – Where evidence that the mother suffers from post-traumatic stress disorder and anxiety – Where evidence the mother has recently experience suicide ideation and is overwhelmed by the court proceedings – Where mother is suffering from extreme fatigue – Where mother feels no end to litigation as she believes the father will appeal irrespective of the outcome – Where Court satisfied that on occasion the father engaged in non-consensual sexual intercourse with the mother – Where Court noted the father interacts with others in a controlling and dominating way – Where Court satisfied that continued interaction with the father in relation to the child will likely significantly affect the mother’s psychological health and her ability to cope. FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child - Where Court considered the likely effect on the child of any loss of the child’s relationship with the father – Where family report writer noted that the… |
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- AGLC
- Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
- Case
- [2014] FamCA 1038
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the best interests of the child, particularly in light of the father's anti-social personality traits and the mother's mental health challenges. The court had to assess the risk of harm to the child from continued interaction with the father, the potential adverse impact on the mother's parenting capacity, and the mother's alleged risk to the child. The court also considered the presumption of equal shared parental responsibility and whether it applied, and the father's history of litigation.
Justice Tree applied the principles of the best interests of the child, giving significant weight to the unchallenged evidence of the family report writer. The court found a real risk of emotional harm to the child posed by the father's personality traits, accepting that the emotional risks of ending contact with the father were lower than the known harm from continued contact. The court also found that continued interaction with the father would significantly affect the mother's psychological health and ability to cope, noting her post-traumatic stress disorder, anxiety, and recent suicide ideation. The father's controlling and dominating behaviour, his failure to contribute financially to the child's upkeep, and his coaching of the child in relation to their living arrangements were also considered. The court was not satisfied that the mother presented an unacceptable risk of harm to the child, despite some acknowledged risks. The presumption of equal shared parental responsibility was found not to apply, and the court determined that sole parental responsibility for the mother was appropriate.
The court ordered that the child live with the mother and that the mother have sole parental responsibility. The father's time and communication with the child were suspended until the child attained the age of eighteen, with the exception of one birthday and one Christmas card or letter per year, to be vetted by the mother. The father was also restrained from contacting the child's school and from coming into proximity of the mother or child. Furthermore, the father was prohibited from instituting further proceedings under the *Family Law Act* without leave of the court, due to his history of vexatious litigation.
Orders
Orders of the court
1.
That all previous parenting orders in relation to the child, X Theophane (“the child”) born … 2006, be and hereby are discharged.
Parental Responsibility
2.
That the mother have sole parental responsibility for the child, including determining:
2.1 Any medical or health matter concerning the said child;
2.2 Matters relating to the education of the said child, including but not limited to the choice of the child’s school;
2.3 Disciplinary matters other than those of a trivial nature; and/or
2.4 Matters concerning the social development and sporting activities of the said child.
Living Arrangements
3.
That the child live with the mother.
Time and Communication with the Father
4.
That the father be permitted to send the child one birthday card or letter, and one Christmas card or letter each year.
5.
That the sending of the card or letter be done by;
(a) The father posting such card or letter to the Cairns Registry of the Family Court;
(b) The Registrar of the Family Court arranging for the card or letter to be sent to the mother.
6.
That otherwise as provided in Order 4, the father’s time and communication with the child is suspended until the child attains the age of eighteen (18).
7.
That otherwise as provided in Order 4, the father is restrained from attempting to spend time with and communicate with the child or requesting any other person to do so.
8.
For the purposes of Order 5(b), the mother is to advise the Cairns Registry of her current postal address from time to time, and advise of any change thereto within 7 days of the change occurring.
General
9.
That the mother continue to maintain her safety plan for receiving mental health support in conjunction with the maternal grandmother and the mother’s relevant treating professionals.
Restraints
10.
That the father be restrained from contacting the school at which the child attends.
11.
That the father is restrained from coming into sight of or proximity of the mother, the child, attending their residence, the child’s school or any other place the child or mother may be in attendance from time to time with any other person.
Authority
12.
These Orders shall serve as an authority to permit the Principal and staff of the school at which the child attends to not communicate with the father.
Child Therapist
13.
That the Independent Children's Lawyer is granted leave to provide copies of the Judgment, Orders and Family Reports to Dr LL, the Child Therapist or such other Child Therapist as nominated by the Report Writer or the Independent Children's Lawyer.
14.
That the mother engage the child in an initial short period of therapy with a suitably qualified Child Therapist for the purpose of supporting the transition to no time with her father.
15.
That the mother be guided by the Child Therapist when the child gets older as to when or if additional sessions are needed to update the child’s understanding of why she does not spend time with her father.
16.
That the Report Writer and the Independent Children's Lawyer explain the Orders to the child.
17.
That the mother is granted leave to provide a copy of the Orders, Judgment and Family Reports to any educational facility the child attends from time to time and to the Case Manager at M Mental Health Service.
18.
That the mother is granted leave to provide copies of the Orders, Judgment and Family Reports to the Queensland Police Service with a view to seeking a Domestic Violence Protection Order for herself and the child to prevent the father from attending within the proximity of the mother and the child.
Vexatious Litigant
19.
By way of vexatious proceedings Order:
(a) The father is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against or in relation to the mother or the child without first having been granted leave to commence that proceeding pursuant to section 102QD of the Act;
(b) This vexatious proceedings order does not apply to:
(i) Any appeal from these orders, provided such appeal is filed within the time prescribed under the Family Law Rules 2004 or such other time as is permitted by Order of the Full Court;
(ii) Any Application for Stay consequent upon the filing of any such appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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