Vestri & Vestri (No 4)
[2024] FedCFamC1F 233
•8 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri (No 4) [2024] FedCFamC1F 233
File number(s): CAC 405 of 2022 Judgment of: GILL J Date of judgment: 8 April 2024 Catchwords: FAMILY LAW – PARENTING – Assessment of risk – Where there are serious allegations of family violence towards the mother and the children – Where the applicant father did not participate – Where the mother and the ICL’s proposed orders are substantively aligned – Risk of future family violence – Where the relationship between the father and the eldest child is ‘irrecoverable’ – Where extreme risk also warrants no time between the youngest child and the father – Mother to have sole parental responsibility – Children to live with the mother – No time or communication with the father – ICL discharged Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60CC, 65Y
Cases cited: Eastly & Eastly (2022) FLC 94-094; [2022] FedCFamC1A 101
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; 1988 HCA 68
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 8 April 2024 Place: Canberra Solicitor for the Applicant: Litigant in Person (did not participate) Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Neilan Stramandinoli Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid ACT ORDERS
CAC 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESTRI
Applicant
AND: MS VESTRI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 APRIL 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother, Ms Vestri, have sole parental responsibility for the children X, born 2006, and Y, born 2016 (together referred to as “the children”).
3.The mother be permitted to change each of the children’s given and/or surnames NOTING THAT the mother will take into account the children’s views and wishes on that issue.
4.The children live with the mother.
5.There be no time or communication between the father and the children.
6.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother be permitted to take each of the children outside the Commonwealth of Australia or allow each child to travel outside the Commonwealth of Australia (and it is noted that this is an Order to which s 11(1) of the Australian Passports Act 2005 (Cth) applies for the Minister to issue a passport for each of the children without the need for the consent of the father). Once a passport has issued for each of the children, the mother will hold the passports at all times.
7.I discharge the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Vestri & Vestri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
The final hearing of the parenting dispute between the parties is being conducted today on undefended basis with respect to the father. The orders sought by the mother and Independent Children’s Lawyer (“the ICL”) aligned save for minor textual matters and the mother adopted the ICL’s proposed orders regarding name change, which marked the most significant divergence between them. Their common position reflects an outcome whereby the children, the subject of the proceedings, X, born 2006, and now aged almost 18, and Y, born 2016, now aged 8, would spend no time with, and have no communication with the father, would live with the mother who would exercise sole parental responsibility without reference to the father, and who would be permitted to change their names.
X’s and Y’s best interests, as understood from the consideration of the matters contained at s 60CC of the Family Law Act1975 form the paramount consideration in determining whether these orders should be made. I have determined that it is in their best interests to make the orders that reflect the scheme proposed by the ICL.
In X’s case sufficient justification is given for such orders as being reflective of his views. At almost 18 years of age, although he has been accessed assessed as extremely psychologically vulnerable by the single expert, he was also assessed as demonstrating the requisite maturity and consideration that his wishes should be seen to be determinative. When X’s account of the abusive, traumatising, threatening and violent behaviour of his father is taken into account, such explains eloquently why it is that he holds such strong views in opposition to spending time with his father. His recital of the father’s conduct would act as a sufficient justification, even without consideration of his views, for the orders to be made that are proposed.
In the context where the relationship between X and his father is of a character where X despises him, where it is assessed by the single expert as to being irrecoverable, it cannot be thought that there are available benefits of meaningful relationship that would counter the views and risk factors naturally flowing from X’s description. It is in X’s best interests to make orders as sought by the ICL.
Although Y’s views, which express an aversion to the father, are not, given his age and level of maturity, determinative of the issue as to whether or not he should have a future relationship with his father there are a suite of factors that support the same outcome of the adoption of the ICL’s orders. Those are factors that undermine the notion that Y would have significant benefits of relationship with his father, factors that support the notion that the father constitutes an unacceptable risk of harm to Y and factors that indicate the adverse impact on the mother’s parenting capacity due to the trauma effects of being exposed to the father, or to the father having time with Y or to the mother coming into contact with the father. These three categories are interrelated. For example, the issues of risk of harm in forming assessment of the benefits of meaningful relationship or for example, the issues of risk are causally connected to the potential undermining of the mother’s parental capacity. In considering these risk issues the High Court in M v M[1] and the Full Court in Isles & Nelissen[2] and Eastly & Eastly[3] have identified both the predictive nature of such and the need to consider in the light of all of the circumstances, including uncertain underlying facts such as cannot be determined. Here however, a solid factual basis of abuse and violent behaviour can be established on the basis of the evidence in particular, given by the mother. Here those major factual issues are constituted by the father’s conduct being abusive, threatening and violent. Regarding his violent behaviour, in the absence of contradiction of the evidence of the mother and taking into account the matters reported by X in particular to the single expert, a cogent basis is formed to consider that the father has brutally, physically assaulted the mother. Her account is both particular and generalised as to the father choking her, being an act of compromising another’s airway that can only be conceived of as an egregious form of family violence. The multiple instances of such are not isolated but are supplemented by other physical violence perpetrated by the father. The mother also gives accounts of the father holding a knife to her neck, making various threats to kill her, to burn the home to harm the people associated with her, to harm or kill the children. Again, these accounts should be accepted and they form serious examples of family violence.
[1] (1988) 166 CLR 69.
[2] (2022) FLC 94-092.
[3] (2022) FLC 94-094.
Further, the mother gives accounts of multiple sexual assaults by the father, with such accounts also being accepted in the absence of contradiction. They add even more to the picture of extreme family violence perpetrated by the father and to which the mother has been subjected. These factual matters lead to the conclusion that the children are at unacceptable risk of exposure to or subjection to family violence from the father, a risk made greater by his previous violence directed, for example, to X.
Whether there is also a risk of sexual abuse is less clear, although the mother and children ought to be accepted in their description of the children being exposed to sexualised conduct by the father.
Each of these matters are further surrounded by other risk factors, including the father’s at least previous use of drugs, the previous circumstances that meant that the family had to undertake significant steps to move home to avoid criminal targeting, and the potential that the family were exposed to a criminal targeting. Again, these are further accentuated by other circumstances, including the father’s explosive, to a degree self-admitted abusive conduct, some examples of which are seen at exhibit W3, his aggression showing during assessment in front of the single expert writer, his lack of insight at the assessment as to the impact of his conduct and his self-description at the time at having, on facing the allegation of sexual abuse of the children, considered blowing his own brains out in response. Adding even more to that picture, the wife has identified factors that lead to a significant risk that stalking has taken place, or of facts that would constitute stalking that, if accepted, would point to future risk of such. This includes the conduct of third parties known to the father being in close proximity to the mother. They include the father’s uncanny awareness on occasion of the mother’s whereabouts and the father’s approaches to members of the family despite a family violence order being in place.
It may be observed that any combination of these factors, even if they were not all accepted as identified above, or accepted to the degree that they indicate that there is a risk, for example of stalking in the future, paint a picture of a risk that is so extreme and as to warrant there being no time between he and Y and of the character too great to be ameliorated by supervision, even formal or professional supervision. They are matters that also undermine the notion of any significant benefits being in place for relationship between the father and Y. Even if one accepted that there are potential benefits in Y knowing where it is that he has come from, any such benefit is so wrapped up with the detriments accompanying the above descriptions as to render the benefits minimal and insufficient to warrant time in the face of the above matters.
Whilst the above list of acts on the part of the father, or of risks constituted by the father, are extreme, they do not constitute the complete list of matters raised by the mother. However, it is not necessary to further traverse the matters that have been raised by her.
The conclusion is that is not in Y’s best interest to have any contact with the father.
In relation to the issue of name, given the antipathy of Y’s siblings towards his father, their apparent intention to change their name and the mother’s prospect of taking protection from the change in the children’s names, it is appropriately in Y’s best interest to allow the mother, taking into account his wishes to align Y’s surname and other name with any adopted by the mother or his siblings. Perhaps this will give some protection in relation to the above risks, but it is also a matter of importance given the closeness that Y has with his mother and his siblings.
Perhaps obviously in such circumstances, sole parental responsibility must be vested with the mother, as she will function as the sole carer and the sole involved parent and will do so in the absence of there being any prospect of safe interaction between herself and the father that may not cause her further trauma.
No issue has been identified preventing international travel as authorised by the mother. Orders should be made as proposed by the ICL as supporting the childrens best interests and will involve having the children under the care of the mother and protecting them from the risks associated with the father.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 April 2024
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