Wilson & Carter

Case [2022] FedCFamC1F 216

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wilson & Carter [2022] FedCFamC1F 216

File number(s): PAC 5480 of 2018
Judgment of: JARRETT J
Date of judgment: 8 April 2022
Catchwords: FAMILY LAW  – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – parenting – parental responsibility – where presumption of equal shared parental responsibility does not apply – competing proposals for parental responsibility – assessment of competing proposals
Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60CA, 60CC, 61DA(1), 64B(2), 65DAC
Cases cited:

Goode & Goode (2006) FLC 93–296

Simpson & Brockmann (2010) 43 Fam LR 32
Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 18 & 19 November 2020 and 8 & 9 June 2021
Place: Brisbane
Solicitor for Applicant: Litigant in person
Counsel for the Respondent: Ms Mahony
Solicitor for the Respondent: Rowlandson & Co Solicitors
Counsel for the Independent Children’s Lawyer Ms Tabbenor
Solicitor for the Independent Children’s Lawyer John Spence & Associates

ORDERS

PAC 5480 of 2018

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

MR WILSON

Applicant
AND:

MS CARTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:

1.In addition to the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 18 January 2022, the applicant and the respondent have shared parental responsibility for decisions concerning the major long-term issues for X born 2016.

2.Otherwise all outstanding applications are dismissed.

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 Wilson & Carter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J

  1. This parenting application came before me in the Federal Circuit Court of Australia (as it then was) for hearing and determination on 18 and 19 November, 2020.  The hearing of the matter could not be completed and its further hearing was ultimately completed on 8 and 9 June, 2021. At the conclusion of that hearing I reserved my decision for delivery on 15 June, 2021. However, shortly prior to that time my Associate was contacted by the applicant and the other parties requesting the judgment not be handed down because the parties were in the throes of resolving the case.  Despite a couple of further…

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AGLC
Wilson & Carter [2022] FedCFamC1F 216
Case
[2022] FedCFamC1F 216
Decision Date

CaseChat Overview and Summary

In the case of Wilson & Carter, the Federal Circuit and Family Court of Australia dealt with a dispute concerning the parenting arrangements for a child, X, born in 2016. The primary issue before the court was whether the presumption of equal shared parental responsibility under the Family Law Act 1975 (Cth) applied to the parents, Mr. Wilson and Ms. Carter, and, if not, what order regarding parental responsibility was in X's best interests. The court examined the evidence of family violence and parental conduct to determine the appropriate parenting order.

The court identified that the presumption of equal shared parental responsibility did not apply due to evidence of family violence by both parents. The applicant, Mr. Wilson, had engaged in physical assault against the respondent, Ms. Carter, and had committed acts of abuse against another child, Y. Additionally, Ms. Carter had engaged in behaviour that controlled X’s relationship with his father, which the court deemed as family violence. Given these findings, the court concluded that the presumption did not apply and turned to consider X's best interests in determining the appropriate order for parental responsibility.

In making its decision, the court recognised that while the presumption of equal shared parental responsibility did not apply, it was still in X’s best interests for both parents to have shared parental responsibility for major long-term issues. The court emphasised that such an order would allow X to benefit from input from both parents on significant decisions affecting his life, and that shared responsibility would not exacerbate or continue conflict between the parents, who had demonstrated a willingness to seek assistance and improve their co-parenting skills. The court therefore ordered that the applicant and the respondent have shared parental responsibility for decisions concerning the major long-term issues for X.

The final orders made by the court included shared parental responsibility for major long-term issues for X, in addition to the orders previously made by the court on 18 January 2022. All other outstanding applications were dismissed. This decision underscores the importance of assessing each case on its merits, taking into account the welfare of the child and the specific circumstances of the parents, when determining parenting arrangements.

Orders

Orders of the court

PAC 5480 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WILSON

Applicant

AND:

MS CARTER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:

1. In addition to the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 18 January 2022, the applicant and the respondent have shared parental responsibility for decisions concerning the major long-term issues for X born 2016.

2. Otherwise all outstanding applications are dismissed.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Whilst it may have been the case that shortly following X’s birth the applicant’s capacity to put X’s interests ahead of his own when it came to making decisions about X’s welfare in conjunction with the respondent was compromised, the evidence demonstrates that the applicant has taken steps to improve his capacity. I accept his evidence that he has undertaken a “Preventing Violence and Abuse course” and he has undertaken a Circle of Security parenting course. These are matters which demonstrate a willingness on the part of the applicant to seek out and receive assistance in relation to critical areas of his co-parenting functioning.Conclusion Whenever a court makes a parenting order it needs to consider whether the presumption of equal shared parental responsibility applies. I have found in this case that it does not and so it is unnecessary to consider the matters set out in s.65DAA of the Family Law Act 1975 (Cth). Notwithstanding that the presumption does not apply, I am satisfied that it is in X’s best interests for there to be in order that his parents have shared parental responsibility for decisions concerning the major long-term issues for him. The effect of such an order will be to engage the terms of s.65DAC of the Act and impose upon these parties the obligations set out in that section. Imposing those obligations on the parties in this case will benefit X because he will have input from both of his parents about decisions concerning major long-term issues for him. He will not be deprived of the input of one or other of his parents in respect of those decisions. For the reasons I have expressed above, I do not consider that an order for shared parental responsibility will, of itself, lead to an exacerbation or continuation of conflict between these parties because as I have attempted to explain above, whether or not there is such an order, if these parties choose to continue their conflict they will do so. I have come to the conclusion, however, that these parties and in particular the applicant has concluded that the conflict that has existed between these parties following X’s birth is not in his best interests and needs to be avoided. Accordingly, I make orders as set out at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

However, a finding that the presumption does not apply does not mean that a court cannot make an order for equal shared parental responsibility or more simply, shared parental responsibility, but if it does so, it must do so on the basis that such an order is in the subject child’s or children’s best interests: Goode & Goode (2006) FLC 93–296 at [46] – [48]. That is to say, the making of the order is by reason of an application of the best interests’ principle.Consideration Each of the parties addressed the question of parental responsibility in their final submissions. The respondent and the Independent Children’s Lawyer submitted that the presumption of equal shared parental responsibility did not apply. The applicant argued that it did. The respondent and the Independent Children’s Lawyer argue that the presumption of equal shared parental responsibility does not apply because the Court should be satisfied that the applicant has engaged in abuse of another of his children, Y. The evidence supports this submission. The applicant accepted that he had placed his hand over Y’s mouth on a number of occasions so as to prevent her screaming when he did not want her to scream. That action probably constituted an assault within the description of abuse. I so find. Further, the presumption that it will be in X’s best interests if his parents have equal shared parental responsibility for him does not apply because there are reasonable grounds to believe that each of X’s parents has engaged in family violence. Let me explain why. I am comfortably satisfied and I find, that the applicant has engaged in family violence towards the respondent. The evidence demonstrates that there was at least one physical assault of the respondent by the applicant. That assault was not repeated and I am not satisfied that such behaviour by the applicant represents an ongoing risk for X, but it does mean that the presumption of equal shared parental responsibility is displaced. Further, I am also satisfied and I find, that the respondent has engaged in family violence towards X. It will be seen from s 4AB(1) that family violence is constituted by behaviour by a person that controls a member of that person’s family. Here, the respondent’s behaviour in preventing X from spending time with the applicant controlled X and controlled his relationship with the applicant. It also controlled the applicant in his relationship with X. That control prevented X from keeping connections with his family, namely his father. X is a member of the respondent’s family. The applicant is X’s family. Withholding X from maintaining a relationship with the applicant, as the respondent did initially, I find, was family violence. The presumption that X’s parents should have equal shared parental responsibility does not apply because s 61DA(2) is engaged. The making of any orders for parental responsibility must necessarily be a direct result of a consideration of X’s best interests rather than the application of any presumptions.