Vargas & Clarke

Case [2021] FCCA 1950

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vargas & Clarke [2021] FCCA 1950

File number(s): BRC 10951 of 2011
Judgment of: JUDGE LAPTHORN
Date of judgment: 30 August 2021
Catchwords: FAMILY LAW – parenting – application to vary final orders – consideration of Rice & Asplund – consideration of loner term supervision – application to restrain a party from bringing further proceedings
Legislation:

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 65DAC, 102Q, 102QB

Evidence Act 1995 (Cth), s 140
Cases cited:

B & B [1988] FLC 91-957

Bennett& Bennett (1991) FLC 92-191

Betros & Betros [2017] FamCAFC 90

Champness v Hanson (2009) FLC 93-407

D & Y (1995) FLC 92-581

Donaghey & Donaghey [2011] FamCA 13

Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227

George & Nichols [2016] FamCA 519

Godfrey v Sanders [2007] FamCA 102

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Harridge & Harridge [2010] FamCA 445

Heath & Hemming (No. 2) [2011] FamCA 749

King and Finneran [2001] FamCA 344

M v M [1988] FLC 91-979

M v S (2007) FLC 93-313

Marsden and Winch [2009] FamCAFC 152

Mazorski v Albright (2008) 37 Fam LR 518

Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375

MRR v GR [2010] HCA 4

Rice & Asplund [1978] FamCA 84, (1979) FLC 90-725, 6 Fam LR 570

Rilak & Tsocas [2020] FamCA49

Searson & Searson [2017] FamCAFC 119

Sigley v Evor [2011] FamCAFC 22, (2011) 44 Fam LR 439

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Number of paragraphs: 100
Date of last submission/s: 8 June 2021
Date of hearing: 9, 10 and 11 February, 31 May and 8 June 2021
Place: Brisbane
Solicitor for the Applicant: Sterling Law (Qld)
Counsel for the Applicant: Mr Walsh
Solicitor for the Respondent: Whitehead Payne
Counsel for the Respondent: Ms Pendergast
Solicitor for the Independent Children's Lawyer: Lyrene Wiid Lawyer & Migration Agent
Counsel for the Independent Children's Lawyer: Ms Firth

ORDERS

BRC 10951 of 2011
BETWEEN:

MR VARGAS

Applicant
AND:

MS CLARKE

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

30 AUGUST 2021

THE COURT ORDERS:

1.That the father’s Initiating Application filed 6 December 2018 be dismissed.

2.That the mother’s application for a restraint on the father’s ability to bring proceedings without leave of the court be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Vargas & Clarke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE LAPTHORN:

INTRODUCTION

  1. The parents of ten year old C, have been in dispute as to his parenting arrangements all of his life.  C was only eight months old when the first application was made to the Federal Magistrates Court.  There have, in…

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Vargas & Clarke [2021] FCCA 1950
Case
[2021] FCCA 1950
Decision Date

CaseChat Overview and Summary

In *Vargas & Clarke*, heard by Lapthorn J, the father sought to vary final parenting orders, while the mother applied for a restraint preventing the father from initiating further proceedings without leave. The father's application was primarily driven by his desire for increased unsupervised time with the child, arguing that as the child grew older and being of the same gender, more time with him would be beneficial, particularly to foster the child's connection with his Aboriginal heritage. The mother, on the other hand, sought to limit further litigation due to the history of applications in the family.

The court was required to determine whether to vary the existing parenting orders to allow for more substantial and significant unsupervised time between the father and the child, and whether the criteria for restraining the father from bringing further proceedings had been met. Central to these determinations was the assessment of the child's best interests, considering factors such as the child's relationships with both parents, the father's ability to facilitate the child's connection with his Aboriginal culture, and the overall impact of ongoing litigation on the child.

Lapthorn J considered the evidence, including family reports and oral testimony, and found that while the father's desire to connect the child with his Aboriginal heritage was important, it did not override the existing risk of harm considerations that underpinned the current supervised arrangements. The court noted that the father's financial arrears and controlling behaviour towards the mother were indicative of his negative views. Regarding the restraint application, the court found that the criteria for such an order had not been established, despite acknowledging the mother's understandable request given the history of litigation.

Consequently, the court dismissed the father's application to vary the final parenting orders and also dismissed the mother's application for a restraint on the father's ability to bring further proceedings without leave of the court.

Orders

Orders of the court

BRC 10951 of 2011

BETWEEN:

MR VARGAS

Applicant

AND:

MS CLARKE

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

30 AUGUST 2021

THE COURT ORDERS:

1. That the father’s Initiating Application filed 6 December 2018 be dismissed.

2. That the mother’s application for a restraint on the father’s ability to bring proceedings without leave of the court be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother has met all her responsibilities for the child but unfortunately the father has not. His is in arrears of child support to the extent of around $17,000. He denies such and says that the mother owes him money that was garnished from his last tax return by the Child Support Agency. He believes that the mother would use cash to buy horse feed or alcohol rather than use the money to support their son. This is yet a further indication of his negative view of the mother. I reject his view. The mother has prioritised the needs of both her children despite the difficulties she has had in doing so financially. I accept the submission made by the ICL that by giving the child gift cards rather than paying child support the father is being controlling in his behaviour towards the mother.BACKGROUND ISSUES[53][53] S.60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant. The father submitted that the child, being a boy, would want to spend more time with him particularly as he grows older and this could be achieved by significant and substantial unsupervised time. I am not satisfied that it necessarily follows that this child will want to spend more time with his father simply because they are of the same gender. I however accept the father would view positively the chance for them to share their time together as father and son. Of more significant import however is the child’s Aboriginality. The father is a BB People man with his ancestral lands around Town TT. He wants an opportunity to more fully engage C with his aboriginal culture. It is without question that the father would be in the best position, as between the parents, to enable the child to experience life as a BB People youth. I accept the mother’s evidence that she is supportive of C identifying as Aboriginal and learning more about his culture, although she would not be able to assist with a lived experience of it. I note though that the mother has engaged with Aboriginal services to assist the child. Without in anyway wanting to be critical of the father he appeared to lack any deep understanding of his own culture, but I readily accept that it is important to him that C gets to know other B people, learns more of his culture and develops an attachment to his ancestral land. This would of course be more easily achieved if the child is either living primarily with the father or spending unsupervised time with him. This is an important factor but not one that overrides the risk of harm issues.LIMITING FURTHER PROCEEDINGS[54][54] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. At the beginning of this judgment, I highlighted the significant number of applications brought before the courts in relation to this family. There is a risk, no matter what orders I make, that these parties will find themselves in further litigation. I implore them to consider the effect on their son before launching any further applications, no matter how aggrieved they may personally feel.

Evidence

Evidence Before The Court

The other issue for determination is the mother’s application that the father be prohibited from instituting proceedings in relation to the child without first obtaining leave of the Court.THE EVIDENCE In support of his application the father relied on:(a)His Initiating Application filed 6 December 2018;(b)His Notice of Risk filed 7 December 2018;(c)His Affidavit filed 11 January 2021; and (d)His Case Outline filed 29 January 2021. The mother relied on:(a)Her Response filed 1 March 2019; (b)Her Notice of Risk filed 1 March 2019;(c)Her Affidavit filed 22 December 2020; and (d)Her Case Outline filed 5 February 2021. The Independent Children’s lawyer relied on:(a)The Family Report of Ms NN filed 21 August 2019; (b)The Updated Family Report of Ms NN filed 25 September 2020; and (c)Her Case Outline filed 5 February 2021. Documents were also tendered into evidence.[2][2] Exhibit F1 Statement from Ms OO In determining this matter, I have had regard to all the written evidence referred to above along with the oral evidence given. Both parents were cross-examined. Ms OO and Mr PP provided written statements which were received into evidence and were cross-examined. Ms OO was a teacher and Mr PP the former deputy principal at C’s previous school. The family report writer was also cross-examined. To avoid repetition and limit the length of this judgment, apart from setting an informative background, I will not repeat the evidence save that which is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore, throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[3] [3] Section 140 Evidence Act 1995 (Cth) I found the father to be a less than focussed witness. He was fixated on the past and was unable to look at alternative viewpoints. He struggled to answer many questions directly, preferring to give commentary rather than answering the questions asked. However, I am satisfied that was not necessarily an avoidant tactic, but indicative of his obsession with his main concerns about how the child has been cared for by the mother. This obsession appears to have impacted his ability to objectively consider what has been said or written by others. He also used language that did not necessarily fit with his position. For example, he described a former family report writer from one of his earlier proceedings as corrupt. However, it appeared that he has not made a complaint against this report writer and the reason for the allegation of corruption was his belief she did not have regard to or make enquiries as to the number of times the mother took the child to the doctor when she highlighted the number of times he took the child to the doctor and considered that the child was at risk of emotional harm in doing so.

Decision

Reasons for decision

I share that view. Despite my sympathies for the mother’s request for the making of a restraint on further litigation, I am not satisfied the criteria for the making of such an order has been established.CONCLUSION For the reasons set out above I dismiss the father’s application filed 6 December 2018 and the mother’s application for restraint on the father’s ability to bring proceedings without leave of the court.

Ratio Decidendi

Legal Principle Established

In the event I am wrong in that conclusion, I have also turned my mind to what would be in the child’s best interests having regard to those same factors as if I was determining this matter independent of the Rice & Asplund issue. In doing so, I have come to the conclusion that there should be no change to the current parenting orders.DETERMINING THE BEST INTERESTS OF THE CHILD – THE S.60CC CONSIDERATIONS The legislative framework sets out a number of considerations the court is required to assess in determining the best interests of the child. In order to limit duplication, I propose to group together these s.60CC factors thematically. THE CHILD’S RELATIONSHIPS[38][38] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents. The child has been primarily cared for by his mother all his life. He has a close and loving relationship with her. Notwithstanding his time with the father has been supervised for over eight years he has a loving relationship with him. The report writer in her oral evidence said that she observed the child to delight in spending time with his father. Long term supervision is often contra-indicated, but in this case, it has enabled the child to maintain and develop a relationship with his father. There can be no doubt however, that such an arrangement puts limits on the ability of both the father and the child to develop the relationship further. This has long been the complaint of the father and I well understand his frustration. He is not able to take the child to his home or visit his daughter and her children or to explore in a practical sense his Aboriginality. These are very important considerations. The father argued that the current orders do not enable the child to have a sufficiently meaningful relationship with him as such time is not substantial and significant as defined in s.65DAA(3). There is no question that the time arrangements fall outside definition of substantial and significant time. In Mazorski v Albright[39] Brown J said:[26]…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant. [39] (2008) 37 Fam LR 518 at 526 [26] The Full Court in Sigley v Evor[40] approved this approach. The Full Court also affirmed the jurisprudence that the legislation requires the court to promote a meaningful relationship not an optimal one.[41] The Full Court also went on to hold that "meaningful relationship" is a legal construct, not a psychological one and therefore it is for the court, not an expert, to determine what constitutes a meaningful relationship.[42][40] [2011] FamCAFC 22, (2011) 44 Fam LR 439[41] See also M v S (2007) FLC 93-313; Godfrey v Sanders [2007] FamCA 102; and Champness v Hanson (2009) FLC 93-407[42] See also Heath & Hemming (No. 2) [2011] FamCA 749