Yarwood and Klein
[2017] FCCA 2021
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YARWOOD & KLEIN | [2017] FCCA 2021 |
| Catchwords: FAMILY LAW – Parenting – young child – no time with father for most of child’s life – mother resistant to child spending any time with father – mother primary carer – whether child should spend any time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: A & A (1998) FLC 92-800 |
| Applicant: | MR YARWOOD |
| Respondent: | MS KLEIN |
| File Number: | PAC 2014 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 16 June 2016, 9 September 2016, 20 – 21 March 2017 |
| Date of Last Submission: | 21 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | Farah Lawyers, Solicitors and Barristers |
| Counsel for the Respondent: | Ms Mahony |
| Solicitors for the Respondent: | Louise Coady Family Lawyer |
| Independent Children’s Lawyer: | Mr Nasti |
ORDERS
The child X born (omitted) 2013 shall live with the mother.
The mother shall have sole parental responsibility for the child.
The child shall spend time with the father as follows:
(a)Commencing on Saturday, 2 September 2017 and for a period of three months, each Saturday from 10am to 1pm, with such time to occur at a public place known to the child;
(b)Thereafter, for a further period of 4 months, each Saturday from 10am to 4pm;
(c)Thereafter, for a further period of 6 months, each alternate Saturday and Sunday from 10am to 4pm;
(d)Thereafter, for a further period of 6 months, each alternate weekend from 10am Saturday to 6pm on Sunday;
(e)Thereafter, each alternate weekend from after school on Friday to 6pm on Sunday.
On the expiration of time in order 3(d) the child shall spend half of each school holiday period with the father, such periods being the first half in even numbered years and the second half in odd numbered years.
The time spent in order 3(e) be suspended during school holidays.
The time spent with the father be shall be suspended in the event such time falls on Mother’s Day.
Notwithstanding any other order and commencing in 2018, the child shall spend time with the father on Father’s Day and on the child’s birthday as agreed between the parents, and failing agreement from 3pm to 7pm.
Except where the child’s school is an appropriate venue, changeover shall occur at a public place to be agreed between the parties and in the absence of agreement at (omitted) Police Station. The mother shall be responsible for delivering the child to the agreed location at the commencement of time and the father shall be responsible for returning the child to that location at the conclusion of time.
Each of Mr Yarwood and Ms Klein and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2013 from the Commonwealth of Australia.
X born (omitted) 2013 be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing X born (omitted) 2013 on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List.
Upon expiration of the period referred to in Order 11 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List until the child turns 18.
The mother shall within 28 days provide all necessary authorities and information to the father such as to enable him to obtain copies of the child’s school reports and any medical reports in relation to the child.
The mother shall within 28 days provide all written authorities and directions necessary to the child’s educational, medical and dental providers to provide to the father with all documents and information in relation to the child.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Yarwood & Klein is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2014 of 2014
| MR YARWOOD |
Applicant
And
| MS KLEIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in relation to young X born on (omitted) 2013. The last time that X spent time with the Applicant father was in October 2015. X’s primary care giver has always been the Respondent mother.
By the time these Reasons are delivered, X would not have spent any time with his father for almost two years. Given his young age, this is almost half his life. It is highly likely that he will have a very limited independent memory of his father.
The father wants to have a relationship with X and moves the Court for orders that he spend time with him. The mother’s position is that X will not benefit from a relationship with the father, and therefore there should be no orders for time. The mother also seeks an order for sole parental responsibility. The parties agree that X should live with the mother.
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of the proceedings.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
Relevant Chronology of Events
The father was born in (country omitted) on (omitted) 1959.
The mother was born in (country omitted) on (omitted) 1970.
In 1972 the father immigrated to Australia.
In 2009 the father travelled to (country omitted) where the parties met. The parties became engaged to marry in (omitted) 2010. The father then sponsored the mother’s application to migrate to Australia.
In (omitted) 2011, the mother immigrated to Australia. The parents were married a short time later on (omitted) 2012. The only child of the parties X was born on (omitted) 2013.
An incident occurred on 29 April 2014 which resulted in the police applying for an Apprehended Violence Order for the protection of the mother. At the time, the father was charged with common assault and possession of illicit drugs.
The parties’ relationship was relatively short lived, and they separated on 1 May 2014. Thereafter, X did not spend any time with his father until February 2015.
The proceedings themselves have somewhat of a protracted history.
The father commenced these proceedings on 2 May 2014 when he filed his Initiating Application. The mother did not file her Response until some four months later, on 15 August 2014.
On 8 September 2014, the Apprehended Violence Order was made on a final basis by the Local Court at Bankstown.
On 18 November 2014, at the fourth mention of this matter, the Court declined to make orders by consent. An Independent Children’s Lawyer was then appointed and the matter was again adjourned. At this stage of the proceedings, the matter was transferred from Judge Halligan’s docket to Judge Harman’s docket.
On 17 December 2014, the parties were directed to attend family counselling, and an order for the preparation of a Family Report was made. By consent on 17 December 2014, the Court made orders for the child to live with the mother and to spend supervised time with the father at the (omitted) Contact Centre for two hours per week.
The Family Report was released on 8 July 2015. The report made certain recommendations in respect of X spending time with the father on an unsupervised basis.
On 20 August 2015, orders were made for the preparation of the matter for trial and listing it for final hearing 10am on 5 and 6 May 2016.
In the meantime, the child spent fifteen periods of supervised time with the father after the making of the December 2014 orders. That time ceased in October 2015 after the Contact Centre refused to facilitate further time. The last time when X spent time with the father was on 1 October 2015.
On 3 May 2016, the hearing dates were vacated and on 10 May 2016 the matter was transferred to my docket, where it was listed for final hearing on 16 and 17 June 2016.
At the conclusion of day 1 of the hearing on 16 June 2016, due to difficulties with the interpreter, the matter was adjourned part-heard to 9 September 2016. On that day, the father sought for the hearing to be adjourned as he was no longer legally represented. The matter was then adjourned for further hearing to 20 and 21 March 2017, when it proceeded to finality.
Section 60CC Considerations
Additional Considerations
The child’s views and his relationships
The child is four years old.
The Family Report in these proceedings is dated 8 July 2015. At the time of the interviews, X was approximately two and a half years old. He had been spending time with his father at the contact centre since February 2015.
The Family Report notes as follows:
a)X was observed to run to the father and embrace him with a large smile;
b)Observed in play with X, the father was very active and energetic;
c)The father successfully and happily entered the child’s world of play;
d)X seemed very happy as he boisterously played with the father;
e)The child responded naturally to his father’s expressions of affection; and
f)X hugged and kissed the father at the end of the session.
As at the time of the Family Report interviews, the child was enjoying a close and loving relationship with the father, albeit a relationship which was still developing. The reports from the contact centre are similar to the observations of the Family Consultant about the child’s interaction with the father.
The mother has always been the child’s primary carer. The Court accepts that the child has a close and loving relationship with the mother.
The mother does not have any other children and her extended family is in (country omitted).
The father has a number of children who are all adults, and a number of grandchildren. The father has a troubled relationship with his older children and there is no evidence that the child has any relationship with his siblings or nieces and nephews.
However, if the father is to have a relationship with the child this will give the child the opportunity to have a relationship with the father’s extended family, the only extended family that the child has in Australia. Not to have that opportunity is to deny the child the opportunity of potentially wonderful and life-long relationships.
Parents’ participation in decision making and spending time
The child’s time with the father was terminated by the contact centre in October 2015. The reason for the termination was the father’s refusal to follow the directions of the centre staff about taking photographs of the child. The contact service took the view that the father was being aggressive towards its staff in front of the child. On that occasion the father certainly behaved poorly, but his actions did not warrant the complete cessation of time between him and the child.
Following the vacation of the second day of hearing on 16 June 2016, the father did not agree to spending any time with the child on a supervised basis pending the conclusion of the hearing. This was a very unfortunate decision on the father’s part. The ultimate result is that the child has not spent any time with the father for close to two years. Of course, the blame for this does not lie entirely at the father’s shoulders. The mother has not offered the father any time which was not supervised nor has she sought to facilitate a relationship between the child and the father outside of the contact centre.
At the time of the Family Report interviews and continuing throughout the hearing, the mother maintained her position that time between the father and the child should be supervised. Indeed, the mother’s position at final hearing was that she did not believe that the child spending time with the father will improve the child’s relationship with the father.
Likely effect of any changes and Practical Difficulty
There is no practical difficulty with the child spending time with the father. The mother lives with the child in the (omitted)/(omitted) area and the father lives in (omitted). Distance is not an issue.
There will be significant changes for X if he starts spending time with the father. This is not so not only because he has not seen him for almost two years, but also because of the mother’s lack of support for the child’s relationship with the father.
However, the Court accepts the evidence of the Family Consultant that the child deserves a chance to have a relationship with the father, despite the difficulties this may cause him. Whether the relationship is capable of being sustained is not something which is known. Much will depend on how X copes, how resilient he is and how the father behaves. According to the Family Consultant, children have to come to terms with the reality of who their parents are.
Parental capacity to provide for child’s needs
Since separation, the mother has met all of the child’s physical needs. There is a significant question mark about her ability to meet the child’s emotional needs, same being evidenced by her lack of support of the child’s right to have a relationship with the father.
The father’s capacity to meet the child’s needs is untested. What is known is that the father can be volatile and put his own needs ahead of those of the child. This will not, in the Court’s assessment, place the child at an unacceptable risk of harm, but what it might do is impact upon the relationship which the child and the father will need to build.
Maturity, sex, lifestyle and background of child and parents
The mother is (nationality omitted).
The father is (nationality omitted).
Attitudes to the child and responsibilities of parenthood
The child’s right to have a relationship with the father has been unreasonably curtailed by the mother.
The fears which the mother expressed she held and the reasons why she would not consent to the child spending time with the father except on a supervised basis have not been established on the evidence.
Family Violence
The mother makes allegations of family violence. She says that when the child was about six weeks old, the father hit her very hard across the face, leaving a bruise. She says she felt dizzy and that her face was swollen.
The mother says that the father would become angry towards her during their relationship, putting her down and saying to her that she did not know how to look after the child. He is said to have called her derogatory names.
The mother alleges that in February 2014, the father hit the child over the head with rolled up newspaper.
In late 2014, the mother says the father accused her of spending some savings and that he argued with her about that. While she was breastfeeding the child, the father came towards her and squeezed her face. She tried to get away but the father strangled her neck. The mother then went into the bathroom. The police arrived a short time later and the mother made a statement to the police. The police charged the father and applied for an Apprehended Violence Order.
After this incident the parents continued to live together, but on the day that the matter was in Court the mother received assistance to get some of her belongings and left the home on a final basis on that day.
After the mother and X left the home, they lived in safe housing for a while and the mother did not want the father to know where she was.
On 8 September 2014, the father attended the Bankstown Local Court where he consented to an Apprehended Violence Order for a period of 12 months. That order expired in September 2015. The assault charges against the father were dismissed, however, he received a fine for possession of cannabis. He has also received a bond for a breach of the Apprehended Violence Order.
At final hearing the mother maintained that she was fearful of the father and of what he may do to her and to the child.
The father denies the allegations of family violence which the mother makes. The Court, despite the evidence of the parties during the hearing, does not make any findings about the alleged family violence.
Primary Considerations
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect child from harm as against the benefit of the child having a meaningful relationship with the parents.
Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interests. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the child is to spend with the father.[6]
[6] M & M (1988) 166 CLR 69 at 77
As the Full Court made clear in A & A[7] the principles relating to risk of sexual abuse as stated in M & M[8] apply to other risks of harm to the child. However, it must not be forgotten that the resolution of an allegation of abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.[9]
[7] (1998) FLC 92-800; (1998) 22 FamLR 756
[8] (1988) 166 CLR 69
[9] M & M (1988) 166 CLR 69 at p76
The mother asserts a history of family violence perpetrated by the father, not only where she was the alleged victim but also where the child was the alleged victim. These matters are considered in more depth elsewhere in these Reasons.
Having carefully considered the mother’s evidence of family violence, the Court does not find that there is an unacceptable risk of harm to the child in being exposed to family violence, abuse or neglect. Moreover, any risk is outweighed by the benefit to the child of having a meaningful relationship with his father.
The Family Consultant was clear in his evidence that he did not consider the father to pose an unacceptable risk of harm to the child. In the Consultant’s view, the father is between a rock and a hard place, in that while supervised time for the child is not something which is recommended due to any risk issues, it is recommended simply to ensure that the child is familiar with the father. When weighing up the risk of no time versus some trauma to the child of being re-introduced to the father with no supervised lead up, the Consultant was of the view that the latter was the lesser of the two evils. In the Consultant’s view the father needed to accept that any recommendation for supervised time was not a reflection on the father but rather was to meet the needs of the child.
The purpose of the supervision was to ease the child into spending time with the father. The supervisor which the Consultant envisaged was someone who was known to the child. A further difficulty which the Consultant identified was that the supervisor needed to be someone who the mother had confidence in. Such a supervisor was not able to be identified by the mother.
Supervision of time through a contact centre does not meet the Consultant’s recommendation of the supervisor being known to the child and someone who the child is comfortable with. Therefore, it is not something which is supported by the evidence.
The Court is comforted by the evidence of the father’s interactions with the child after separation when supervised time commenced. At the time the child was much younger than he is today. He had not seen his father for many months. Yet he was not troubled about spending time with the father, what he was troubled by was the unknown supervisor. X was able to settle into his father’s care quickly then. It has now been much longer since X spent any time with the father.
The Court is of the view that a good indicator of X’s future reactions to spending time with the father is how he reacted in the past. It may however be that the child rejects the father at first or has some difficulty in adjusting to spending time with him. For this reason, time will be re-introduced slowly with the father and the child to initially spend time together in a public place, which is familiar to the child.
While the Court finds that the mother will not herself encourage a relationship, she will comply with orders, as she has in the past. The Court finds that the mother will facilitate the child spending time with the father in accordance with orders.
Parental responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[10] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[10] See note s61C
The father submits to the Court that an order for equal shared parental responsibility is appropriate in all of the circumstances. It is said on his behalf that while such an order may cause conflict, it is important for the child to know that his father is involved and cares enough about making long term decisions. Such submission is supported by the evidence of the Family Consultant.
The mother and the Independent Children’s Lawyer submit to the Court that an order for the mother to have sole parental responsibility ought be made. It is submitted that an order for equal shared parental responsibility is against the evidence.
There has been no communication between the parties since separation, not even evidence of attempted communication through solicitors. The reality for the child is said to be that the parents are not communicating, and that the mother will not initiate contact with the father. She has no demonstrated ability to communicate with the father. It was further submitted that the Family Consultant identified that there was a real practical impediment to the parties making joint decisions.
On the evidence and facts as determined, the presumption of equal shared parental responsibility has been rebutted. While the recommendation of the Family Consultant was for there to be an order for equal shared parental responsibility, the Court finds that on balance the parents are incapable of having any meaningful communications such as would be needed for them to be able to make decisions jointly.
Airport Watch List Order
The mother has no family in Australia and apart from the child, no real ties to this country. She does not own any property, nor does she have an established career. She is in the process of learning English. (country omitted) is not a Hague Convention Country. As such, the Court is satisfied on all of the evidence that the Airport Watch List order should remain in place until the child is 18 years of age.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best interests for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 29 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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