Wickham and Arnett - [2018] FCCA 80

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKHAM & ARNETT

[2018] FCCA 80

Catchwords:
FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Betros & Betros [2017]FamCAFC 90
Mazorski & Albright ( 2007) 37FamLR 518
Weekes & Pilcher (No.2) [2016] FCCA 2486

Applicant:

MR WICKHAM

Respondent:

MS ARNETT

File Number:

NCC 1258 of 2012

Judgment of:

Judge Terry

Hearing dates:

5, 6, 11 & 18 December 2017

Date of Last Submission:

18 December 2017

Delivered at:

Newcastle

Delivered on:

19 January 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:	Nash Allen Williams & Wotton
Counsel for the Independent Children's Lawyer:	Ms McMahon
Solicitors for the Independent Children's Lawyer:	Legal Aid Gosford Family Law

ORDERS

All previous parenting orders concerning X born (omitted) 2010 and Y born (omitted) 2010.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
That except as otherwise provided for in these orders, the father shall be and hereby is restrained by injunction for the personal protection of the mother, Ms Arnett, and the children, X and Y, pursuant to section 68B of the Family Law Act, from:
a)Entering or approaching within 100m any premises where the mother may from time to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wickham and Arnett

Details

AGLC: Wickham and Arnett [2018] FCCA 80
Case: [2018] FCCA 80
Decision Date: 19 January 2018

CaseChat Overview and Summary

This case involved parenting orders concerning two children, X and Y, born in 2010. The dispute was between the mother, Ms Arnett, and the father, Mr Wickham. The matter was heard by Judge Terry.

The court was required to determine the parenting arrangements for the children, specifically whether the father should have any time or communication with them, and to consider the father's capacity to form a meaningful relationship with the children. Additionally, the court had to assess the impact of past family violence on the children and their relationship with their parents.

The court's reasoning focused on the children's welfare, particularly their expressed views and fears regarding the father. The judge considered evidence from a family report writer and counselling notes, which indicated that X, one of the children, felt unsafe when his father became angry and had memories of his father's violent behaviour. X had repeatedly refused unsupervised time with his father, expressing fear that his father would hurt someone again. The court acknowledged the complexity of relationships within violent households and the mother's own history of fear and embarrassment. The judge concluded that the father had not demonstrated the capacity to build a meaningful relationship with the children, especially given their fear and the history of family violence.

The court ordered that the mother have sole parental responsibility for the children, that the children live with the mother, and that the father have no time and no communication with the children. Furthermore, an injunction was granted under section 68B of the Family Law Act, restraining the father from entering or approaching within 100 metres of the mother's or children's residences or the children's school, and prohibiting any contact with the mother or children, except through a lawyer or for approved counselling or mediation. All other outstanding applications were dismissed.

Orders

Orders of the court

All previous parenting orders concerning X born (omitted) 2010 and Y born (omitted) 2010.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The father shall spend no time with and have no communication with the children.

That except as otherwise provided for in these orders, the father shall be and hereby is restrained by injunction for the personal protection of the mother, Ms Arnett, and the children, X and Y, pursuant to section 68B of the Family Law Act, from:

a) Entering or approaching within 100m any premises where the mother may from time to time to reside or work;

b) Entering or approaching within 100m any premises where the children may from time to time attend school;

c) Approaching or contacting the mother and/or the children by any means whatsoever, including through a third party, except:

i. Through a lawyer; or

ii. To attend accredited or court-approved counselling, mediation and/or counselling; or

iii. As ordered by this or another court.

d) Removing the children from school.

e) Permitting, directing or allowing any third person to do any of the above on his behalf.

All outstanding applications are otherwise dismissed.

Background

Background to the litigation

I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant. This is not relevant as a separate consideration. I must consider the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents. Viewed from one perspective, the mother did not show a good attitude to the children or the responsibilities of parenthood in remaining in and repeatedly returning to a violent relationship nor in agreeing to the children spending time with the father after separation without pausing to consider how this might impact on children who had witnessed so much family violence. However, the court repeatedly sees situations where people have been drawn into and remain in and have difficulty extricating themselves from violent relationships; these situations are complex, and the mother gave convincing evidence of being afraid of the father and of being embarrassed and ashamed and of not wanting to accept help. Even after the relationship ended the mother was slow to engage with counselling. She said that she was:…embarrassed and disgusted just thinking about all the things Mr Wickham had done and…found it very hard to speak to a counsellor.[8][8] Mother’s affidavit paragraph 272 If they spend only a few hours with him supervised each alternate week, they will also not have a meaningful relationship with him. He may ask them about how they are going at school and notice them growing and changing but he will not have a nurturing and guiding role in their life. If the children spend alternate weekends and half school holidays with the father, there is scope for him to have a meaningful relationship with them. He will have an opportunity to provide care for them as well as to have fun with them and will have more opportunity to tune in to their interests and find out how they are going at school. There is no guarantee however that time will lead to a meaningful relationship, in other words a relationship which is significant important and valuable to the children. [10] If the children are afraid of the father or are exposed to family violence in his care, then he will not form a relationship with them which is meaningful.[10] Mazorski & Albright ( 2007) 37FamLR 518 A mere order by me will not result in the father having a meaningful relationship with X. The father has a lot of bridge building to do if he is to form a meaningful relationship with X, and there is nothing to suggest that he is capable of building that bridge. After an unsuccessful attempt to get X to go with him on the first occasion after the order for unsupervised time was made, he has let things with X slide and only spent time with Y, and his proposal during closing submissions was that X should be told by the Independent Children’s Lawyer that the court had made orders.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The additional considerations in s. 60CC (3) include matters such as the children’s views, the nature of their relationship with each of their parent’s, the capacity of each parent to provide for the needs of the children and whether there has been family violence. Sometimes it is necessary to make findings about the s. 60CC (3) matters to inform considerations of the s. 60CC (2) matters. This is such a case and I intend to start by considering the matters in s. 60CC (3). The first of the s. 60CC(3) matters is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views. X has made clear his view about spending unsupervised time with the father by his refusal to do so. When the family report writer conducted the report interviews in January 2017, X had been spending supervised time with the father for about seven months after not having seen him for nearly a year. He told the family report writer that it was good seeing the father again. However, he also told the family report writer that he felt unsafe when his father got angry and when he was asked if there was anything that would make his life better he said “for dad not to be angry”. X refused to go with the father for an unsupervised visit in January 2017 and he refused to go with the father after an order was made in April 2017 for short unsupervised visits to take place each alternate weekend. X and Y attended counselling with (omitted) Psychology between March and July 2017 and the counsellor’s notes indicate that she made some effort to explore with X the issue of his reluctance to spend time with his father. X’s comments to the counsellor about his father, despite having safely spent supervised time with him for about seven months, were negative. He said that he had memories of his father throwing things at the TV (7/3/2017), that he didn’t want to see him and that he wanted someone to be there when he saw his father (17/5/2017). X said that he was worried that Dad would hurt someone again and would hurt him. He said that he didn’t think Y was worried but he was worried. When asked if he was scared of Dad or just worried he said “Both” On 26 July 2017, X was asked by the counsellor whether he would see the father if someone was there and he said that he would. He was asked whether Dad could make a promise and he said “No, he did wrong; threw water at the TV, smashed a phone.” He was asked what emotion that was and he said “angry” and it made him scared. He was asked if Y seeing Dad helped and he said no. X said that he felt safe talking to his father on the phone. I am conscious of the limitations of this evidence. The counsellor was not called and I had no opportunity to assess her. Nobody was able to cross-examine her about her qualifications or experience. I am also reliant on the notes she chose to make; nobody had an opportunity to ask her additional questions about her sessions with the children.