Waugh & Rozon (No 2)

Case [2024] FedCFamC1F 518

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Waugh & Rozon (No 2) [2024] FedCFamC1F 518

File number(s): SYC 3879 of 2022
Judgment of: CURRAN J
Date of judgment: 2 August 2024
Catchwords: FAMILY LAW – PARENTING – Where orders made for the mother to have sole parental responsibility by consent – Where the mother alleges the father is an unacceptable risk of harm – Where the mother alleges the father perpetrated coercive and controlling family violence against her – Where the mother alleges the father perpetrated physical family violence against her – Where the mother alleges the father poses an unacceptable risk of harm due to his mental health – Where the father has not engaged in treatment of his mental health – Where the father alleges the mother poses a risk of harm due to her mental health – Where the father has not spent time with the children since separation – Consideration of Re Andrew principles – Where the father poses an unacceptable risk of harm – Orders made for the father to spend no time and have no communication with the children
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 67ZC, 114AB, 117
Cases cited:

Bant & Clayton (2015) 53 Fam LR 621

Bielen & Kozma (2022) FLC 94-123

Carter & Wilson [2023] FedCFamC1A 9

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Gorman & Huffman and Anor [2016] FamCAFC 174

H v R [2006] FamCA 878

Illgen & Yike [2018] Fam CA 17

Isles & Nelissen (2022) FLC 94-092

Jacks & Samson (2008) FLC 93-387

Keane & Keane (2021) 62 Fam LR 190

Keighly & Keighly [2023] FedCFamC1A 146

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

Oberlin & Infeld [2021] FamCAFC 66

Outhred & Outhred [2020] FamCA 639

Ramzi & Moussa [2022] FedCFamC2F 1473

Re Andrew (1996) FLC 92-692

Waugh & Rozon [2024] FedCFamC1F 268

Division: Division 1 First Instance
Number of paragraphs: 418
Date of hearing: 2-5 April 2024
Place: Sydney
Counsel for the Applicant: Ms Cantrall
Solicitor for the Applicant: Gannon Family Law
Counsel for the Respondent: Ms Winfield
Solicitor for the Respondent: Choice Law Group
Counsel for the Independent Children's Lawyer: Mr Hill
Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers

ORDERS

SYC 3879 of 2022

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

MS WAUGH

Applicant
AND:

MR ROZON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

2 AUGUST 2024

THE COURT ORDERS THAT:

1.The mother shall have sole parental responsibility for the children namely X born 2013 and Y born 2018 (“the children”).

2.The children shall live with the mother.

3.The children shall spend no time with the respondent father, Mr Rozon born 1985 (“the father”).

4.The father is at liberty to provide his treating psychiatrist, psychologist and general practitioner with a copy of the single expert report and a copy of these orders and reasons.

5.The mother is at liberty to…

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AGLC
Waugh & Rozon (No 2) [2024] FedCFamC1F 518
Case
[2024] FedCFamC1F 518
Decision Date

CaseChat Overview and Summary

The case of Waugh & Rozon (No 2) involved a dispute between Ms Waugh and Mr Rozon regarding the parenting arrangements for their two children, X and Y. The primary issue before the court was whether the father should have any contact with the children, given the allegations of family violence and mental health issues raised by both parties. The court had to determine if the father posed an unacceptable risk of harm to the children, and if so, what parenting orders should be made.

The court found that the father had engaged in family violence, including physical violence, coercive and controlling conduct, and dysfunctional sexual coercion during the relationship. After separation, the father's conduct continued to be coercive and controlling, posing a risk to the mother and children. The mother alleged that the father's mental health issues further increased the risk of harm to the children. The court concluded that the father's conduct and mental health issues constituted an unacceptable risk of harm to the children, warranting no contact between the father and the children.

The court considered the principles outlined in Re Andrew, which emphasise the importance of protecting children from harm. The court also weighed the children's need for a meaningful relationship with both parents against the risk of harm posed by the father. Given the evidence of family violence and the father's failure to engage in treatment for his mental health issues, the court decided that the father should have no time or communication with the children.

The court made orders for the mother to have sole parental responsibility and for the children to live with her. The father was prohibited from contacting the children or attending any locations where the children might be. Communication between the parents regarding the children's health and education was to occur through the OurFamilyWizard App, with specific instructions on how and when to communicate. The court also restrained the parties from denigrating each other in the presence of the children. The court denied the mother's application for costs, finding that the father's conduct warranted no contribution to the Independent Children's Lawyer's fees.

Orders

Orders of the court

SYC 3879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WAUGH

Applicant

AND:

MR ROZON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

2 AUGUST 2024

THE COURT ORDERS THAT:

1. The mother shall have sole parental responsibility for the children namely X born 2013 and Y born 2018 (“the children”).

2. The children shall live with the mother.

3. The children shall spend no time with the respondent father, Mr Rozon born 1985 (“the father”).

4. The father is at liberty to provide his treating psychiatrist, psychologist and general practitioner with a copy of the single expert report and a copy of these orders and reasons.

5. The mother is at liberty to provide her treating psychiatrist, psychologist, counsellor and general practitioner with a copy of the single expert report and a copy of these orders and reasons.

6. The mother is at liberty to provide to either of the children's treatment providers a copy of the single expert report, a copy of these reasons, and these orders.

Communication

7. Any necessary communication pursuant to these orders shall occur through the parenting application OurFamilyWizard.

8. Within 7 days of the date of these orders the parties are to download and connect to each other on OurFamilyWizard.

9. The mother shall inform the father via OurFamilyWizard as soon as practicable of any major health issues of the children or either of them, including, but not limited to, either of the children suffering a serious illness or injury or the hospitalisation of either of the children.

Authorities

10. The father is authorised to request from any school attended by the children, or either of them, at his expense, copies of all school reports, school photographs, school newsletters and any other necessary information about the children's academic progress.

11. The mother is to notify the father if the children change schools, and such notice shall be provided via OurFamilyWizard within 14 days of such change.

Non denigration

12. The parties are restrained from denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

Costs

13. The application for the mother to pay to Legal Aid NSW her share of the ICL's cost being a total of $7,819.95 is refused.

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).

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

Background

Background to the litigation

Given the allegations made in respect of the father’s conduct and his denials as to some of the conduct, and the dispute as to its characterisation, it is necessary to make factual findings in respect of the allegations as set out below. Background to ADVO of early 2022 In September 2021, the mother's lawyers K Lawyers wrote to the father advising him that the mother wished to make arrangements for the parenting of the children and for property settlement without proceeding to litigation. That letter contained her instructions that the mother contended that there was a history of family violence. The father contended that the mother ceased time after a failed financial mediation in December 2021. The mother said the children ceased spending time in early December as she believed he posed a risk to them. In late 2021, the mother attended Town S Police Station and reported to the NSW Police the history of family violence. The NSW Police issued an ADVO against the father. In early 2022, the application was amended as an Urgent Application, with conditions providing for the father not to approach the mother or go within 200 meters of where she lived or worked. The mother included particulars of the allegations both in her report to the police and in her ADVO application. In his affidavit in response to the application for an ADVO, the father denied knowledge of allegations of family violence. Given the contents of the September 2021 letter, that denial must be false. On 7 June 2022, the mother filed an Initiating Application seeking urgent interim orders. On 8 July 2022 interim orders were made by a Senior Judicial Registrar including Orders 13 and 14 which said:13. That until further order the father be restrained by injunction from coming into contact with the children or attending at the children’s school, the mother's house, any day care centre, any extra-curricular activities which include before and after school care and vacation care the children may attend. 14.That the father shall not approach the mother or the children and shall not harass and/or intimidate the mother or any member of the mother's family in any way. In mid-2022, a final ADVO was made for the mother's protection for a period of 12 months, being up to mid-2023. Accordingly, the mother had the protection of both the ADVO and the Orders of 8 July 2022.Minimal contact between December 2021 and May 2022 The father said that the mother unilaterally cancelled him seeing the children after a failed financial mediation in December 2021. He said that the mother blocked his mobile phone, blocked him on WhatsApp and prevented any time. He stated in oral evidence “ever since the AVO, I've been blocked. That’s what deterred me.” He gave no evidence of attempting to contact the children until May 2022. The father reported to the Court Child Expert that “he was worried about being accused of breaching the AVO and his lawyer had advised him to be cautious about contacting the children.” He also said the mother made a threat after the mediation, which the mother denied.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I find, based on the evidence of the mother, the records of the reports made by the father as contained in his medical notes, and as corroborated by the mother's sister, that the father on numerous occasions, removed the mother's keys, wallet and phone. I find that this was part of a pattern of control over the mother as she alleged.Conclusion in respect of allegations of family violence during the relationship I am satisfied on the balance of probabilities that the father engaged in family violence toward the mother, specifically, that he engaged in physical violence during the relationship, that he engaged in coercive and controlling conduct, and that he engaged in dysfunctional and abusive sexual coercion towards the mother.Was there family violence after separation? The mother sought a finding that the father engaged in family violence toward her, specifically that he engaged in coercive and controlling conduct toward the mother after the parties separated, which is denied by the father. The father says the incident at Suburb F in late 2022 is an example of the mother exaggerating her complaints. The mother says it illustrates the father’s impulsivity and explains her ongoing fear of him given his conduct was in breach of both an ADVO and restraining order made by this Court. The father says the incident at T Shopping Centre in late 2023 was not family violence nor, he contended through his counsel, was it a “serious breach of orders” contrary to the mother’s evidence. Given the allegations made in respect of the father’s conduct and his denials as to some of the conduct, and the dispute as to its characterisation, it is necessary to make factual findings in respect of the allegations as set out below. Background to ADVO of early 2022 In September 2021, the mother's lawyers K Lawyers wrote to the father advising him that the mother wished to make arrangements for the parenting of the children and for property settlement without proceeding to litigation. That letter contained her instructions that the mother contended that there was a history of family violence. The father contended that the mother ceased time after a failed financial mediation in December 2021. The mother said the children ceased spending time in early December as she believed he posed a risk to them. In late 2021, the mother attended Town S Police Station and reported to the NSW Police the history of family violence. The NSW Police issued an ADVO against the father. In early 2022, the application was amended as an Urgent Application, with conditions providing for the father not to approach the mother or go within 200 meters of where she lived or worked. The mother included particulars of the allegations both in her report to the police and in her ADVO application. In his affidavit in response to the application for an ADVO, the father denied knowledge of allegations of family violence. Given the contents of the September 2021 letter, that denial must be false. On 7 June 2022, the mother filed an Initiating Application seeking urgent interim orders. On 8 July 2022 interim orders were made by a Senior Judicial Registrar including Orders 13 and 14 which said:13. That until further order the father be restrained by injunction from coming into contact with the children or attending at the children’s school, the mother's house, any day care centre, any extra-curricular activities which include before and after school care and vacation care the children may attend. 14.That the father shall not approach the mother or the children and shall not harass and/or intimidate the mother or any member of the mother's family in any way.

Ratio Decidendi

Legal Principle Established

For the reasons set out above, I am satisfied that the father however should have the capacity to keep himself informed of the children’s progress at school by the usual authority for the school to send information which parents are usually sent. This will both avoid any negative impact of direct communication and ensure the father has information and knowledge of the children’s progress and achievements. I am also satisfied that the mother should be required only to notify the father if the children change schools and that such notice should be by way of communication sent by her to him using the OurFamilyWizard App within 14 days of such change. PRIMARY CONSIDERATIONSMeaningful Relationship It is ordinarily in the best interests of a child to have a meaningful relationship with both parents, but the Court must focus on whether or not the child will derive a positive benefit from the relationship and whether such relationship is one that is important, significant, and valuable to the child. The children’s relationship with the mother The mother has a meaningful relationship with the children. The single expert opined that X has an insecure attachment to her mother, but that the attachment can become secure. Y is securely attached to her mother. There are multiple sources of evidence to support the finding of the mother's appropriate and responsive parenting. The consent position of all parties that the mother hold sole parental responsibility and the children continue to live with the mother also supports the finding. Additionally, the counselling records from M Health Centre, where the mother and X attended for counselling, records that the mother's parenting is appropriate and healthy, that she is “excellent” at implementing parenting strategies suggested and seeks reassurance and guidance from experts in relation to her parenting. X's psychologist, Ms O, reported in December 2022 that X's “mother appears to be providing appropriate and meaningful emotional support despite the emotional impacts of her own traumatic experiences.” These independent records are consistent with the single expert’s opinion and support the finding which I make that the mother is an appropriately responsive and attuned parent and that the children have a meaningful relationship with her.The children’s relationship with the father X lived with both of her parents, albeit with some periods of separation, until their final separation in 2021. X expressed to the Court Child Expert Ms E (“the Court Child Expert”) in 2022, and to her psychologist Ms O in the presence of her mother, that she missed her father; she cannot be happy without her father in her life; and she wished to see him and have telephone time with him. X also expressed to a number of people including her mother, her school principal, Ms O and Ms E, that she has some fears of the father for herself, but also fears for the safety of her sister and mother. I find that X's relationship with the father is complicated and that her views about time are mixed.