Ye & Cai (No 5)

Case [2022] FedCFamC1F 721

Federal Circuit and Family Court of Australia

(DIVISION 1)

Ye & Cai (No 5) [2022] FedCFamC1F 721

File number(s): CAC 1379 of 2021
Judgment of: CAMPTON J
Date of judgment: 21 September 2022
Catchwords: FAMILY LAW – Application for Review – Interim parenting proceedings.  
Legislation:

Family Law Act 1975 (Cth) Pt VII, XIIIA, ss 60CA, 60CC, 65D, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 14.3, rr 3.01, 6.06, 1.04, 14.07
Cases cited:

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC

Ebner & Pappas [2014] FLC 93-619; [2014] FamCAFC 229

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386

Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223

Kioa v West [1995] 159 CLR 550; [1985] HCA 81

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Salah & Salah [2016] FLC 93-713; [2016] FamCAFC 100

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Wayne & Dillon & Anor [2008] FamCAFC 204

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Ye & Cai (No 3) [2022] FedCFamC1F 477

Division: Division 1 First Instance
Number of paragraphs: 114
Date of hearing: 19 September 2022
Place: Sydney
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Litigant in person
Solicitor for the Second Respondent: Litigant in person
Solicitor for the Independent Children's Lawyer: Parker Coles Curtis

ORDERS

CAC 1379 of 2021

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

MS YE

Applicant
AND:

MR CAI

First Respondent

MS ZEXI
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

19 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.Orders 17 and 18 made on 1 July 2022 are discharged.

2.The paternal grandmother’s Application for Review filed on 8 July 2022 is dismissed.

3.The time for the paternal grandmother to comply with Order 3 made on 19 July 2021 is extended to 29 September 2022.

4.On or before 4.00 pm on 29 September 2022, the paternal grandmother shall file and serve a Financial Statement.

5.On or before 4.00 pm on 5 October 2022, the mother shall file and serve any Amended Initiating Application setting out with particularity:

(a)the final orders she seeks as to parenting and property adjustment; and

(b)any orders she seeks as against the paternal grandmother on both a final and interim basis.

6.In the event the mother seeks interim relief as against the paternal grandmother by way of her Amended Initiating Application filed in compliance with Order 5(b) above, such interim relief be listed for case management before Gill J on 7 October 2022.

7.On or before 4.00 pm on 6 October 2022, the paternal grandmother shall…

Continue reading Ye & Cai (No 5)

Sign in free to access the full text

Details
AGLC
Ye & Cai (No 5) [2022] FedCFamC1F 721
Case
[2022] FedCFamC1F 721
Decision Date

CaseChat Overview and Summary

The matter of Ye & Cai (No 5) was heard in the Family Court of Australia, where the parties were contesting issues related to parenting arrangements and family violence. The father, born in 1983, and the mother, born in 1993, have two children, X and Y. The dispute centred on the care and welfare of their children, with the father seeking to establish a relationship with them after a period of 17 months during which they had not seen him. The mother had alleged family violence during their marriage, and the father had significant mental health challenges, including a diagnosis of major depressive disorder.

The primary legal issues the court had to decide involved the best interests of the children, the application of the presumption of equal shared parental responsibility, and the appropriate parenting arrangements given the history of family violence and mental health issues. The court needed to determine whether the presumption of equal shared parental responsibility applied, and if so, how it should be balanced with the need to protect the children from harm.

The court found that the presumption of equal shared parental responsibility did not apply due to the extensive family violence and mental health issues of the father. It was determined that the father's mental health challenges, including his diagnosis of major depressive disorder, warranted a cautious approach to his contact with the children. The court was persuaded that it was not in the best interests of the children for the father to have unsupervised contact with them at that time. The court also found that the father's proposal for limited contact (4 hours each month) was inadequate for the children to develop a meaningful relationship with him, considering their young age and the lengthy period of separation.

The court dismissed the father's application for review and confirmed the existing orders, including the requirement for the father to attend specific parenting programs. The final orders reflected the court's determination that the children's welfare was best served by maintaining the current arrangements, pending further developments in the father's mental health and his ability to safely engage with the children.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

An interim family violence order was made in the Magistrates Court of the D Region in mid- 2021 restricting and prohibiting the behaviour of the mother in relation to the father and the children. That complaint was withdrawn on or about late 2021 and the interim family violence order discharged.Background The father was born in 1983 and is currently 39 years old. The mother was born in 1993 and is currently 29 years old. The mother is not employed. She receives Centrelink benefits and resides with the children in temporary accommodation provided by the Q Domestic Violence Service at an undisclosed address in City M. The father was employed full time as a public servant but has not been engaged in employment since his hospitalisation in early 2022. He lives with his parents. The parties married in 2017. During the mother’s pregnancy with X, the parents commenced to live with the father’s parents. The mother contends that she, as between she and the father and the paternal grandmother, was the person who was primarily responsible for caring for the children on a day-to-day basis during the period of the marriage save for a period of approximately for four months when she was in Country B in 2018 (prior to the birth of Y). The father contends that “while he was at work” the children were primarily parented by the paternal grandmother and thereafter by the paternal grandmother and him after work. He said that nannies attended from Country B to assist in the care of the children. The circumstances of the mother spending time in Country B in 2018 are the subject of controversy. The mother contends that she went to Country B because the father allegedly informed the Department of Immigration and Border Protection that she did not want to live in Australia and hence believed she could not remain in this country. She returned to Australia after negotiating with the father’s family. The father and the paternal grandmother contend that the mother returned to Country B because she “wanted a new husband”. The mother separated from the father and left the paternal grandparent’s home on 19 April 2021. At that time X was approaching three years old and Y was almost one year old. The children have not spent time with the father since separation in April 2021, being a period of 17 months. Y has now spent significant longer living apart from her father than with him. Each party makes serious and significant allegations as to family violence occurring during the relationship, including of a physical and psychological nature upon the children as recorded later in these reasons. It is uncontroversial that the father has experienced significant mental health challenges. In Exhibit 6, being a medical certificate dated early 2022, the father is recorded as being unfit for work for a period from early 2022 to mid-2022, by reason of a diagnosis of a “major depressive disorder”. His symptoms are recorded as being fatigue, sleep disturbance, low appetite, weight loss, [and] difficulty concentrating”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, the father sought to discharge the orders requiring that he attend the Circle of Security and C Centre courses. He made no submissions to support any other course other than to confirm such orders. I am satisfied and find that it is in the best interests of the children for the father to attend such programs. Again, the father’s challenge to that order will be dismissed and the orders confirmed. Conclusion In the circumstances the father’s Application for Review will be dismissed. For all of the above reasons, I make the orders as set out at the forefront of this judgment.

Ratio Decidendi

Legal Principle Established

Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for the child. The presumption applies unless it is displaced because there are reasonable grounds to believe there has been abuse of a child or family violence (s 61DA(2)) or in an interim matter, the Court does not consider it appropriate to apply the presumption (s 61DA(3)). In this matter the presumption is rebutted having regard to the versions of either party as to extensive family violence. Additionally, it is not appropriate to apply the presumption. Neither parent nor the Independent Children’s Lawyer seek an order as to parental responsibility. They do not contend that equal time or substantial or significant time is considered to be in the best interests of the children at this time and that orders regulating the best interests of the children ought to be the result of consideration of relevant matters in s 60CC of the Act.The primary considerations: s 60CC(2) The primary considerations, which are contained in s 60CC(2), are:(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant” being advantageous to the child. The Full Court in McCall approved the interpretation of the phrase by Brown J in Mazorski & Albright [2007] FamCA 520 that:26.What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". Each of the parents and the Independent Children’s Lawyer agree that it is in the best interests of the children to have meaningful relationship with both of their parents. Both the mother and the Independent Children’s Lawyer adopt the position such that should the father put evidence before the Court that he no longer lives with mental health challenges or that they are sufficient ameliorated by way of therapy and medication, and subsequent to him re-establishing a relationship with the children within a supervised spend time with environment, his time with the children ought to expand and become unsupervised. The Father seeks to spend time with the children for 4 hours each month. Implicitly he is of the view that such period and frequency of time spent is sufficient or adequate for these children of tender years to develop a meaningful relationship with him after a period of not seeing him for the past 17 months.