FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Webber & Jarrett [2023] FedCFamC1F 16
File number: HBC 140 of 2019 Judgment of: MCGUIRE J Date of judgment: 25 January 2023 Catchwords: FAMILY LAW – CHILDREN – Application by mother that the child live with her and that there initially be a four month moratorium on the father spending time with the child – application opposed by the father in circumstances where child has lived with him since separation – relocation – allegations of family violence – child’s views – complex special needs of the child – orders that the child be permitted to relocate intrastate to live with the mother – order that there be a moratorium on the father spending time the child for a period of 16 weeks and thereafter for half of all school holidays and by telephone each Wednesday – order that mother have sole parental responsibility for the child Legislation: Family Law Act 1975 (Cth) ss 60B, 61B and 60CC, Cases cited: Champness & Hanson [2009] FamCAFC 96, (2009) FLC 93–407
Goode & Goode [2006] FamCA 1346, (2006) FLC 93–286
KB & TC [2005] FamCA 458, (2005) FLC 93–224
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93–343
Paskandy v Paskandy [1999] FamCA 1889, (1999) FLC 92–878
U v U (2002) 211 CLR 238, (2002) FLC 93–122
Division: Division 1 First Instance Number of paragraphs: 149 Date of last submissions: 12 January 2022 Date of hearing: 24, 25 and 26 August 2022, 19 September 2022, 24 October 2022 and 25 November 2022 Place: Hobart Counsel for the Applicant: Ms Graves Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: Dobson Mitchell Allport Counsel for the Respondent: Ms Watson Solicitor for the Respondent: Legal Aid Tasmania ORDERS
HBC 140 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEBBER
Applicant
AND: MR JARRETT
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
25 january 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.The mother have sole parental responsibility for the child Y born 2006 (“X”).
3.X live with the mother, Ms Webber (“the mother”).
4.X not spend time with or communicate with the father, Mr Jarrett (“the father”), for a period of 16 weeks from the date of these orders and thereafter X shall spend time and communicate with the father as follows:
(a)by telephone each Wednesday at 7.00pm with the father to initiate the calls and the mother to permit and assist X to accept such calls;
(b)for one half of each of the Tasmania gazetted term school holiday periods from 4.00pm on the last day of school term until 3.00pm on the Saturday midway through the school holiday period;
(c)on a week about basis during the longer Christmas/summer school holiday period with changeovers to take place on Fridays at 5.30pm and to commence on the first Friday of such…
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- AGLC
- Webber & Jarrett [2023] FedCFamC1F 16
- Case
- [2023] FedCFamC1F 16
- Decision Date
CaseChat Overview and Summary
In the case of Webber & Jarrett, the father, Mr Jarrett, sought to maintain his role as the primary carer for their 16-year-old child, X, who has been diagnosed with various complex needs, including a low IQ, cognitive issues, and social and psychological/emotional difficulties. The mother, on the other hand, requested that X live with her, proposing equal shared parental responsibility and increased visitation arrangements. The central dispute in this matter involved the determination of X's primary care arrangements and the allocation of parental responsibilities between the parties.
The primary legal issue the court was required to decide was whether it was in the best interests of X for the child to live with the mother, or to remain in the care of the father with increased visitation arrangements with the mother. The court had to weigh the complex needs of X, the health and capabilities of both parents, and the history of the relationship between the parties. Additionally, the court had to consider the statutory principles and guidelines relevant to relocation and shared parental responsibilities.
In delivering the judgment, the court found that X's best interests would be served by the child living with the mother, with the father having shared parental responsibility and specified visitation arrangements. The court found that the father's health and capacity to care for X were questionable, and that he had not adequately supported X's complex needs in the past. Furthermore, the court observed that the relationship between the parents was marked by mistrust and a lack of cooperation, which made it difficult for them to work together in the best interests of X. The court also noted that the mother had established stable accommodation, a relationship, and employment, and was in a better position to address X's needs.
The court concluded that the primary care of X should be with the mother, with the father having shared parental responsibility and specified visitation arrangements. The court found that this arrangement would provide X with the necessary stability and support to address their complex needs, while also allowing for a meaningful relationship with the father.
In light of the findings and conclusions, the court made orders for the child to live with the mother, with the father having specified visitation arrangements, and for both parents to have equal shared parental responsibility. The court also made orders for the parties to participate in a family consultation process to facilitate communication and cooperation in the best interests of X.
The primary legal issue the court was required to decide was whether it was in the best interests of X for the child to live with the mother, or to remain in the care of the father with increased visitation arrangements with the mother. The court had to weigh the complex needs of X, the health and capabilities of both parents, and the history of the relationship between the parties. Additionally, the court had to consider the statutory principles and guidelines relevant to relocation and shared parental responsibilities.
In delivering the judgment, the court found that X's best interests would be served by the child living with the mother, with the father having shared parental responsibility and specified visitation arrangements. The court found that the father's health and capacity to care for X were questionable, and that he had not adequately supported X's complex needs in the past. Furthermore, the court observed that the relationship between the parents was marked by mistrust and a lack of cooperation, which made it difficult for them to work together in the best interests of X. The court also noted that the mother had established stable accommodation, a relationship, and employment, and was in a better position to address X's needs.
The court concluded that the primary care of X should be with the mother, with the father having shared parental responsibility and specified visitation arrangements. The court found that this arrangement would provide X with the necessary stability and support to address their complex needs, while also allowing for a meaningful relationship with the father.
In light of the findings and conclusions, the court made orders for the child to live with the mother, with the father having specified visitation arrangements, and for both parents to have equal shared parental responsibility. The court also made orders for the parties to participate in a family consultation process to facilitate communication and cooperation in the best interests of X.
Orders
Orders of the court
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Background
Background to the litigation
The father, Mr Jarrett, proposes that X continue to live with him and that the parents have equal shared parental responsibility. He proposes a continuation of a recent arrangement whereby X spend each second weekend with the mother from Friday afternoon until Sunday at lunchtime and perhaps increasing to block periods during school holidays in the near future.RELEVANT BACKGROUND FACTS X is unanimously described as a vulnerable teenager with complex needs and various diagnoses. The mother lives in rented accommodation in City B. She is in a relationship with a Mr D. She is employed with E Organisation working with families. She is 42 years of age. The father is 44 years old. He lives in City C. He is habitually unemployed. On the evidence, he is not currently in a relationship. The parties agree that they commenced a de facto relationship in about 1998 or 1999. The father says they separated in 2010. The mother says that separation was in 2015. The parties have another child, Ms F, born 2001 and hence now 21 years of age. Ms F is herself now a mother. The evidence is that the mother is in good or reasonable health. She says that she was previously diagnosed with “significant anxiety” which, on the evidence, appears to have been situational to the relationship between the parties. The father’s own health is complex and confusing. He says that he was diagnosed in 1988 with a chronic medical condition. I am told that it is a serious disease. The father’s evidence generally was suggestive of a debilitating and perhaps life-threatening disease for which there is no cure and which impacts, at times, seriously on his enjoyment of life. The father also claims various other medical issues including a diagnoses of post-traumatic stress disorder (“PTSD”) and physical conditions. The mother moved from City C to City B after what she says was separation in 2015 leaving X and Ms F in the care of the father without any arrangements for detailed time between children and mother. The mother says that the relationship was psychologically, emotionally, verbally and physically abusive causing her some situational mental health issues. Ms F moved from the family unit with the father and X in late 2019. She did not give evidence in these proceedings. X’s time with the mother has been sporadic at best since 2015 and often with gaps of no time at all until late in these lengthy proceedings when X appears to have been enjoying more consistent fortnightly weekend time with the mother. This was despite there being interim consent orders made by Judge Taglieri in November 2021 providing inter alia for X to live with the father and spend time with the mother each alternative weekend from Thursday until the following Tuesday and for block periods of seven nights during school holidays. The evidence suggests that the father has received various government supports and National Disability Insurance Scheme (“NDIS”) funding since at least 2017 for X. It is not disputed on the evidence that some of the services afforded X through the father have lapsed due to them not being taken up or inconsistent use.THE ISSUES
Evidence
Evidence Before The Court
An informal set of principles in matters involving relocation have arisen to assist trial judges and have apparently survived various significant amendments to the Act. In Morgan & Miles (supra) Boland J noted: 80. It follows from my exposition of the legislation, that earlier core principles:-that the child’s best interests remain the paramount but not sole consideration;-that a parent wishing to move does not need to demonstrate “compelling” reasons;-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and-the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,remain valid.THE EVIDENCEThe mother The mother relied on her trial affidavit of 20 July 2022. She deposed to being relationship with Mr D for six years although not necessarily living together in the same home. Mr D did not to provide an affidavit. The mother presented as unsophisticated but open and frank in her evidence including as to her own historical emotional/mental health issues. Her evidence tended to be child focused and she was able to explain and particularise her own circumstances of employment, accommodation and her current relationship. The mother was an impressive witness who was able to be objectively responsive in cross‑examination and to make admissions against interest where necessary. Her evidence showed an insight into X’s particular needs and a genuine desire to be involved in his life. I sensed that the mother was not naive in her understanding of the challenges that almost inevitably will arise by X being placed into her care. My impression was of a mother who genuinely believed that her child’s interests and needs were not currently being addressed and that she was willing and able to take on this role.The father The father relied on his affidavits of the 23 June and 4 August 2022. The father was not a good witness. He was at times expansive and elaborate in his responses in cross-examination whilst deflecting from the question. His attempts to portray himself as an altruistic parent in supporting the relationship between X and the mother were not convincing. As in his interview with the Family Consultant, he attempted to give faint praise to the mother whilst clearly emphasising criticisms of her. His comments in respect of the mother were often patronising and at times demeaning. The credit of the father generally was compromised by his own evidence where he often volunteered facts not set out in his affidavit and then not capable of further corroboration as, for instance, him volunteering that he has achieved a university degree. Similarly, his affidavit evidence was often misleading, frequently selective and incomplete, and at times blatantly false. For instance, where it is clear that X’s attendance at school has been sadly lacking, the father says at [4] of his affidavit of 4 August 2022: [X] has been doing well in school this year and all throughout Term 1. [X’s] attendance is almost at 100%. [X’s] absences have been as a result of getting his period, which also has impacted on his gender dysphoria. X is not currently taking any puberty blockers or hormonal treatments.
Decision
Reasons for decision
Conversely, however, the placement of X into the primary care of the mother with a change of locality, primary parent, role model, school, peer group relationships, therapists, and social networks all present challenges to both X and the mother’s role as a primary parent with some possibility of a return to these Courts.FINDINGS AND CONCLUSIONS I am easily able to find on the evidence that X at 16 years of age is a child with a low IQ, cognitive issues, physical conditions, social and psychological/emotional issues and is therefore highly dependent, now and into the future, on adult assistance and engagement with a number of professionals, therapists and support workers. I find that the father has been X’s primary and sole carer now for a number of years and that X has developed a dependent relationship upon his father. I find that the relationship between the parents is a poor one evidenced by mistrust, non‑communication, and no parental cooperation. On the evidence before me, with particular reference to statements made by the father to the ICL and the responses given by the father in court in cross-examination, I am comfortably satisfied that the father has not promoted a relationship between X and the mother and pays, “lip-service” only to any future intentions to facilitate and encourage such a relationship for X should the child remain in his care. Whilst I am satisfied that the mother did delegate care of X to the father upon the parents separation and her move to City B, I am persuaded on the balance of probabilities that she moved for reasons of historical family violence, particularly in the forms of coercion and control, and that she herself suffered anxiety and emotional/psychological issues at the time which contributed, at least, to her lack of commitment to continuing a relationship with X. I am satisfied, however, that the mother’s conditions were circumstantial and situational, and where she has established stable accommodation, a relationship, and employment, I am satisfied that she has moved on from these conditions and that her mental and emotional health is relatively stable. I am unable to conclude on the balance of probabilities that the father has the physical and psychological health to solely care for his child’s complex intellectual, emotional and physical needs. I am bound to accept the unchallenged evidence of the father himself as to his many and varied physical and psychological diagnoses and, without more current medical evidence to the contrary, and unlike my observations of the mother, I cannot be confident that the father has the ability to now attend positively to those onerous obligations for X. On the evidence, I am satisfied on the balance of probabilities that the father has been inconsistent and at times neglectful in obtaining necessary and recommended therapy, professional assistance, and support for X’s complex needs. The father’s responses and attempted justifications in cross-examination were unconvincing and unsatisfactory.
Ratio Decidendi
Legal Principle Established
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