Father Opposes Mother's Application for Sole Parental Responsibility

Rafala & Debonay [2021] FCCA 1509 (5 July 2021)

The mother seeks sole parental responsibility over X.  She alleges that X's father poses an unacceptable risk to the child.  The Court, in deciding its final order, examined the mother's evidence as to the father's history of family violence as well as the father's claim that the mother's allegations are false and aimed to exclude X from the father. 

Facts:

The father, who was married to Ms C, conceived a child ('X') with the mother.  Ms C, the father's former wife messaged the mother alleging family violence against the father.  When the father was questioned about such, he admitted in his oral evidence that he had “only” hit Ms C with the shoe “8 times”. The father later on moved out from the apartment he lived in with the mother due to escalating family violence characterised by aggression, including throwing things at her, and coercion and control.  The mother asserts that the father's behaviour puts X at risk of physical violence and psychological abuse, that the court should order only four supervised visits per year, for the purposes of X understanding her identity. The mother further asserts her view that the father poses an unacceptable risks to X due to Ms C's evidence of the father's history of family violence.  The father denies the allegations and asserts that the mother is trying to exclude him from X's life.  The father proposed shared parental responsibility moving through to an equal shared time arrangement.

Issues:

I. Whether father has history of anger and violence against former wife, in employment and in dealing with others.

II. Whether father is victim of a campaign of unfounded allegations.

III. Whether father is an unacceptable risk for unsupervised time. 

Applicable law:

Evidence Act 1995 (Cth) s 140 - provides that  the Court is to take into account “the nature of the cause of action or defence”, “the nature of the subject matter of the proceedings”, and “the gravity of the matters alleged”. 

Family Law Act 1975 (Cth) s 60 cc - provides that the Court in making a family order should put the child's best interest as the paramount consideration. 

Analysis:

Dr F, did not address the alleged history of family violence perpetrated by the father against Ms C.  She concluded that Mr Rafala is a competent father with no demeanour which would have a negative impact on the safety and wellbeing of X.  The mother submitted that failed to meet the standard of reliability to be given weight.  To be reliable, an opinion about whether or not the father has anger management issues or presents a risk to X, must be based on a proper factual analysis of the father’s past behaviours.  Although it appears that Dr F was made aware of some of the relevant history concerning Ms C she did not refer to it in her report.

The Family Consultant's opinion provided that while X has a good relationship with both parents, if there is unsupervised time, as requested by the Father, the mother’s parenting capacity is at a risk of suffering.  If there are only four supervised identity visits the mother is likely to regain her psychological well-being and have a basically unimpaired capacity to meet X’s needs.  While the father loves X, the father has not demonstrated a capacity to provide an environment in which X’s emotional needs could be safely met.

Conclusion:

The Court concluded that the father has a history of violence and family violence and poses risks to the child as well as the mother’s psychological and parenting capacity.  The Court gave no weight to the opinion of Dr F.  The Father is an unacceptable risk to the child of spending unsupervised time.  The Mother is ordered to have sole parental responsibility for X but when making any decision about any major long-term issue, the mother must inform the father  in writing of the decision that has been made, within 28 days.  The Child is to live with the Mother.  The Father may spend time with the Child for two (2) hours on four (4) occasions each year with such time to be supervised by B Contact Centre, or such other agency as agreed between the parties, at such times and days as agreed between the parties and the supervision agency, in accordance with Order 4 below.