Paggett & Cable: Denying the father’s parental responsibility

On 25 September 2015 the Family Court of Australia handed down the judgment of Paggett & Cable [2015] FamCAFC. The Court overturned the trial judge’s decision to deny the father parental responsibility and to grant him only very limited contact with the child. This judgment is a reminder that significant and credible evidence is necessary to support the limitation of parental contact and the denial of parental responsibility.

The trial judge made orders providing that the mother was to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend a limited amount of time with the father. While the father did not wish for the child to live with him he took issue with his exclusion from the exercise of parental responsibility and the very limited time with the child granted to him by the trial judge. The Orders were particularly disappointing as they gave the father less time than what was recommended by the family consultant and sought by the mother.

The father successfully appealed the decision on multiple grounds. The significant delay of 17 months between the final hearing and the making of Orders and delivery of was found to have a negative impact on the judgment. This delay was found to have impaired the trial judge’s capacity to assess all the evidence, resulted in a failure to make necessary findings of fact and caused undue weight to be given to more recent evidence adduced in February 2015.

It was also found that there was a lack of consideration of an order for the child to spend substantial and significant with the father. The Court particularly had regard to the father’s application for substantial and significant time, an existing order for a relatively small amount of time to be spent with the father and the trial judge’s taking into account of the anxieties of the mother that were found to be not “necessarily based upon reality”.

An order that seemingly restrained the parties from reaching a private agreement until 2016 was ruled to be unenforceable. The order states that the child could spend an increasing amount of time with the father after 2016 “if the parties wish to do so”. The Court described this Order as “aspirational” and surmised it could inflame conflict as it encourages an expectation for increased time for the father that the mother may not consent to.

This case demonstrates the problems delays in the court process can cause parties and the need for strong evidence to support orders curtailing the time spent and responsibility sought by a parent. Orders that favour one parent need to be supported by evidence such as the unfavourable findings of a family consultant or credible concerns with the ability of the parent to provide adequate care.

The significant delay between the first hearing and the making of orders in this instance contributed to the judgment being overturned. The parties of Paggett & Cable now have to await a retrial, which compounds the delays they have already experienced. In light of this decision undue delays between hearings and the delivery of orders should be avoided in order not to further aggrieve parties that are already inconvenienced.

Boyce Family Law
Divorce Lawyers Sydney

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Gilmour & Lennon: The impact of child relocation

The recent decision of Gilmour & Lennon [2015] FamCAFC 166 concerns the impact that child relocation can have on a child’s relationship with the separated parent and the consideration of the practical difficulties faced by the parents.

On 8 July 2008 final parenting orders were made for the child to live with her mother and have equal shared parental responsibility. The child was to spend time with the father each alternate weekend with changeover occurring at a nearby town in New South Wales.

In mid-2014 the mother planned to move the child to the Central Coast to be closer to her family, for better work opportunities and for better educational opportunities for the child. She wrote a series of letters to the father explaining her reasons for the move and proposing arrangements for him to spend time with the child. The father repeatedly declined to agree. In response to the mother relocating the child to the Central Coast the father filed an Initiating Application seeking the return of the child and an interim order restraining the mother from relocating the child without his consent.

Dunkley J made an interim order returning the child from the Central Coast. His Honour in making this interim order considered the risk that if the child continued to reside in the Central Coast her relationship with the father would deteriorate. He found that there was nothing to rebut the presumption in favour of equal shared parental responsibility. Furthermore, he considered the additional two hours of travel time the move imposed on the father to be significantly onerous.

The Family Court of Australia upheld Dunkley J’s decision. They refuted the mother’s ground of appeal that insufficient consideration had been given to the practical difficulties she faced returning from the Central Coast, considering 30 days to be a reasonable amount of time to facilitate the move.

The mother submitted that the Dunkley J had not taken into account that responsibility for the financial support of the child fell almost exclusively on the mother. The Full Court found that given the lack of evidence before him it was unsurprising that he did not give the financial implications of the move significant consideration.

Another ground of appeal was that Dunkley J gave insufficient regard to the best interests of the child and too much regard for the increased travel time the move to the Central Coast would impose on the father. The Full Court did not accept that this was the case and noted that relying on the issue of weight of consideration is a very difficult manner for an appeal of interim orders to succeed.

The mother submitted that further evidence could be adduced that would have produced a different result. The Full Court found that the evidence was likely to be relevant in making final orders but did not establish that the interim orders were erroneous.

The Full Court concluded that Dunkley J’s interim orders were open to him given the evidence that was before him. The appeal was dismissed with the mother being ordered to pay the father’s costs of the appeal.

Boyce Family Law
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Gardiner & Rivers: De facto spouse restrained from being near children

On 24 January 2014, the Federal Circuit Court handed down the decision of Gardiner & Rivers [2014] FCCA 76.

This matter involved a mother and father who separated in 2010 after three years together. They had two children, a 6-year-old and a 3-year-old.

The mother had sole parental responsibility for the children. The father spent little time with the children, and his own father was required to be present when he did have the children. The mother applied to the courts to restrain the father’s de facto partner from being present during the children’s time with the father, while the father sought substantial and significant time with each of the boys.

In this matter, Judge Lindsay was to consider whether the de facto partner could present a risk to the children.

The de facto partner, referred to in the judgment as “Ms S”, had a history of self-harm and depression. In particular, there was focus on an incident in which Ms S stabbed herself in the abdomen, but accused the mother of the incident, and maintained the accusation for four weeks after the stabbing. As a result, Ms S was convicted of perjury arising out of her false allegations against the wife.

When making decisions relating to parenting orders, Section 60CA of the Family Law Act [1975] provides that the paramount consideration must be what is in the best interests of the children.

Despite a psychiatrist and a family report writer each making recommendations that the de facto partner did not present a risk to the children, Justice Lindsay was not satisfied that this would be the case:

I am apprehensive to some degree about Ms S having an ongoing opportunity to spend time with the children… I have an apprehension about her being continuously or regularly present in the household in which the children continue to develop a relationship with their father.

His Honour continued:

The children are at some degree of risk from interacting with her. I do not want to overstate the risk but she may well again, if drinking and unsupported emotionally by the husband, self-harm or essay self-harm while the children are in her household. It is an unlikely but not a remote possibility. On the other hand, her harming the children directly is a remote possibility.

It was ordered that the children continue to live with the mother and have alternating Saturdays and Sundays spent with the father. It was also ordered that an be injunction granted, restraining the father from causing or permitting Ms S to be present at any time that the children were with their father.

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Proposed Victorian child abuse laws spark debate

The Victorian government has proposed new laws relating to family violence that have the potential to make a significant difference in the way these matters are handled by the courts.

The laws, proposed by the Napthine government, would make it a crime to not disclose a case of child sexual abuse. The crime carries a maximum three-year imprisonment term.

Although the proposed laws contain a specific exemption for people who fail to report child sex abuse because they feel their safety is threatened, they have come to the attention of victim support groups who believe that the mothers of abused children will be too scared to report their abusive partners – and that these women may end up being unfairly jailed.

Attorney-General Robert Clark said:

The bill makes clear that the protection of children from sexual abuse is of paramount importance, while also recognising the domestic violence context in which child sexual abuse may be occurring. The legislation does not prevent any organisation informing police whenever and however the organisation becomes aware that abuse has occurred.

The proposed laws have already proved to be contentious, with the first debate kicking off this week on breakfast television.

Journalist and host of Studio 10, Joe Hildebrand, caused an uproar with his comments about the proposed laws during the show’s broadcast on the morning of the 2nd April.

Hildebrand was interviewing Rosie Batty, the mother of Luke Batty, an 11-year-old boy who was murdered by his father while at cricket training in January this year.

Greg Anderson, Luke’s father, suffered from mental health problems and was verbally and physically abusive towards Rosie Batty. Rosie told News Limited that while Anderson’s threats towards her were serious, she never feared for her or her son’s life.

Because of Anderson’s behaviour, intervention orders were made, which allowed Anderson to continue to have contact with Luke in public places. Tragically, it was in a public place where Anderson attacked Luke – striking first with a cricket bat and then with a knife.

Luke was not fearful of his father – it was Luke who had asked to spend “a few more minutes” with his father after cricket training. Rosie agreed, thinking her son was safe.

Rosie Batty has since made several media appearances in the hope that her son’s story will bring some awareness to family violence and just how dangerous it can be. However, her interivew on Studio 10 made it evident that she, a victim of family violence, is unhappy with the proposed Victorian laws.

Joe Hildebrand opened the discussion with the following:

Obviously you can’t help but feel a huge amount of sympathy for anyone who’s in an abusive relationship but … you have to get out, you absolutely have to get out. There are huge economic costs associated with that, yes there are often other things, but anything is better than staying in an abusive relationship. Frankly, to say that you’re going to not report a case of child abuse or child sex abuse by your partner because you are scared for your own safety, I’m sorry, it is not an excuse.

Rosie replied to Hildebrand, telling him that his comments were “misguided” and that she was “absolutely outraged”:

I was living in hope that because of Luke’s tragic death it would bring a huge awareness to family violence. This is beyond my comprehension how, again, the woman who is the victim is punished.

Joe needs to look at his views as a man and he needs to step up and get informed. Because when I hear comments like that I am so saddened that the focus is still on the woman. Where the hell is the perpetrator? Why isn’t he being jailed for three years?

Rosie also released a statement after the interview, writing that the onscreen debate “has raised a huge opportunity for discussion and that has to be a good thing. Joe has raised comments that are very popular amongst both men and women and by discussing why this has raised such heated debate will make all of us wiser and more informed”.

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Tindall & Saldo: Family violence and the court

A five-year-long custody dispute in the Family Court has not only been making headlines, but also testing how well the legal system is able to handle family violence.

The matter involves a couple that have been given the pseudonyms Ms Tindall and Mr Saldo; they have been fighting over their young daughter since their relationship ended in 2008.

The main issue is their dispute over Mr Saldo’s history of family violence. In 2007, at their home in Cambridge Park, Mr Saldo tied the child to a chair and swung a samurai sword at her. Mr Saldo also bashed Ms Tindall over the course of their relationship.

Mr Saldo was to go on trial for the behaviour in 2010; however, before the criminal trial could happen, the couple came before a court to determine parenting arrangments. Ms Tindall told the court that she was concerned that Mr Saldo would act on threats to kill her and her child. Mr Saldo responded, telling the court that Ms Tindall had a history of making up allegations, and that her fearful behaviour was an act.

Judge Stewart Austin ordered that Mr Saldo continue to see the child for two-hour weekly visits at a supervised contact centre. His Honour’s reasoning was that the incident had occurred many years earlier, and that the pending criminal proceedings did not constitute ”a change in the family dynamic”.

”The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship,” Justice Austin said. ”His pleas of guilty were only a vindication of the mother’s allegations of past domestic violence.”

Fearing for her daughter’s safety, Ms Tindall stopped dropping her child off at the weekly visits. She was then reprimanded by the judge and convicted of 20 breaches of parenting orders.

Ms Tindall is now appealing against her convictions in the Family Court of Australia. Dr R, a Family Court psychologist involved from the beginning of the dispute, has also told the court that he had originally agreed with Mr Saldo and described her as “calculated and brazen”.;

However, when Mr Saldo entered a guilty plea to his criminal trial and was convicted to five years in prison, Dr R admitted he had understated the degree of violence and had never been more wrong in his 20 years of preparing expert reports.

If Ms Tindall’s appeal is successful, it has the potential to change how family violence and domestic abuse is handed by the legal system.

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Roberts & Waters: Risk of harm to the child

On the 31st of January, 2014, the Family Court handed down the decision of Roberts & Waters [2014] FAMCA 34 (referred to as R & W); it involved the best interests of the child, and determined whether the father posed an unacceptable risk of harm to the child.

The Family Law Act 1975 (Cth) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated – unless, of course, it is contrary to the child’s best interests. That said, an important aspect of this objective is protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This very issue of family violence was a concern in R&W.

R&W involved a separated couple and their child from the relationship, a five-and-a-half-year-old boy. The couple met while the father was a prison inmate, serving time for a charge relating to attempted murder; he also had a lengthy criminal history, including two convictions for assault. Once he was released from prison in 2005, R & W were in a relationship for a few years, but separated in 2009.

The child continued to live with the mother after the separation, and at one point the mother sought an AVO against the father for her protection, which he was charged with contravening. Various interim orders were made for the father to spend time with the child; however, only one overnight visit with the father was permitted by the mother.

Ultimately, the mother and father did agree that once the child was of school age, overnight visits with his father were in his best interest; the mother had no concern that the father would ever harm his child. However in the meantime, “she did not believe that he had any understanding of the emotional and developmental needs of young children”.

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that while the child had developed a good relationship with his father, she had serious concerns about the father’s parenting capacity and – without a psychiatric assessment- could not make recommendations about the time that the child should spend with him.

Justice Kent considered the submission made by the Family Consultant, as well as the submission made by a consultant psychiatrist who carried out a psychiatric assessment on each of the parents.

His Honour said that he was “not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child”, and noted that the mother had ultimately consented to the child having overnight time with the father.

While Justice Kent still considered whether the father’s behaviour raised concerns about an unacceptable risk of harm to the child, he determined that he was not satisfied that the father’s time with the child should be restricted because of his behaviour.

As a result, it was ordered that the child was to live with the mother, while also spending regular weekends and time during the school holidays with the father.

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Batkin & Batkin: Mother to be arrested if she continues to disobey orders

The recent family law case of Batkin & Batkin [2013] FamCA 44 involved a separated couple and three children that had been born of the relationship.

The trial initially came before Justice Murphy in November 2011.  At the time, Murphy J adjourned the parenting trial until February 2013, and made interim parenting orders by consent of the parties (referred to as the 2011 Orders).

The aim of the 2011 Orders was to reintroduce the father into the lives of the children; they’d had no direct time with him for over four years, due to a “longstanding dysfunctional relationship” between the parents.

The 2011 Orders included orders to engage with a therapist, and follow directions given by the therapist, with a view to re-establishing the relationship between the children and the father.

However, at the commencement of the final trial of parenting proceedings in February 2013, affidavit evidence submitted by the therapist disclosed that:

 

  • the mother had opted out of the counselling process following the 2011 Orders, and that she had indicated to the therapist by way of SMS message that this was “because the boys do not wish to see their father”; and
  • the boys did not express any concern about spending time with their father, they appeared more to be echoing the views of their mother rather than expressing their own independently-formed opinions.

In reviewing the evidence, the Court observed that the mother “appears to have a complete block so far as recognising the needs of [the] children to be able to form their own views of their father”.

As a result, Justice Kent was concerned that the boys had no opportunity to form their own views of the father; they had simply “regurgitate[d] the views expressed by the mother…and…her negative views of [the father].”

As a consequence, Justice Kent was concerned not to make final parenting orders in the matter until the father had a proper opportunity to re-engage with the lives of his sons, and to demonstrate to the Court that spending unsupervised time with them was in their best interests.

The Court therefore adjourned the final hearing and made interim parenting orders, which included:

  • the father would spend four hours per month supervised time with the boys at a nominated contact centre; and
  • at the end of six months, a report would be produced about the outcome of the father’s time with the boys to assess the father’s wish to graduate ultimately to unsupervised time with the boys each alternate weekend.

To ensure that the mother did not continue to obstruct the process, Kent J also included orders which provided that a warrant be issued for the mother’s arrest should she not deliver the boys to the contact centre at the times required.

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Allenby & Kimble: De facto relationship declared to have existed

On 2 August 2012, the Family Court of Australia handed down the decision of Allenby & Kimble [2012] FamCA 614 (referred to as A & K).

A & K involved competing declarations sought by each party under s90RD Family Law Act 1975 (Cth) (FL Act); essentially, the court had to determine whether their relationship constituted a proper de facto relationship under the FL Act.

Courts are generally asked to determine this issue in the context of property claims made by one party against the other party to the relationship. However, property settlement claims cannot be made unless the parties were either married or in a de facto relationship.

 

The FL Act provides that two people will be in a de facto relationship if they lived “together as a couple on a genuine domestic basis”.

The legislation does not define precisely what constitutes a ‘genuine domestic relationship’; however, when determining the issue a court will have regard to various matters, such as the duration of the relationship, the nature and extent of their common residence, the care and support of children and several other factors which you can read about here.

In A & K, Ms Allenby sought a declaration from the Family Court that her relationship with Mr Kimble was a de facto relationship; Mr Kimble disputed that they had a de facto relationship of the kind contemplated by the F L Act.

Ms Allenby and Mr Kimble had been in a relationship for approximately 10 years, but only lived together over the last five of those years. They did not own property together, nor did they pool resources, but they did attend family events together, spend time with each other’s family and travel together.

Upon reviewing the legislation, case law and evidence, Justice Murphy concluded that the parties were in a de facto relationship, and that such relationship had subsisted for a period which included two continuous years up to the date of separation.

His Honour attached particular weight to factors such as that the couple had shared the master bedroom, and that the relationship moved from ‘separateness’ to a cohabitation.

Having overcome this threshold issue, Ms Allenby was free to pursue her property claims against Mr Kimble under the property settlement provisions of the FL Act.

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