Mother Seeks Sole Parental Responsibility Against Father
Quinlan & Ware [2021] FCCA 1767 (2 August 2021)
The mother, seeking sole parental responsibility over X, alleged that the father poses an unacceptable risk.
The father opposes the mother's application asserting that such is only a means for the mother to easily relocate. The Court, in deciding whether or not the father poses an unacceptable risk considered the submissions of the Family Consultant, evidence of the father's conduct, and each of the parties' evidence. The Court made further orders relating to X's educational needs in accordance with each of the parties' ability to assist the child's education.
Facts:
The parties commenced living together in 2010. In the same year, the Mother discovered that she was pregnant with X who is now 10 years old. The parties separated in either late 2011, on the mother’s evidence, or in early to mid-2012 on the father’s.
The mother says their separation was due to family violence. The mother says that the father has issues with anger management. The father says that the mother is manipulative. In the period until mid-2019 the parties exercised equal shared parental responsibility.
X lived with the mother, and as at June 2019 X was spending time with the father one afternoon each week. In November 2018 both parties told the Court appointed Family Consultant that that time arrangement was working. The mother, however, wanted sole parental responsibility and the right to take X overseas, alleging that the father poses an unacceptable risk. The father opposed these orders, the latter because of X’s right to Country P citizenship.
In December 2019, just prior to the final hearing, the mother raised for the first time the need for X to be supervised when spending time with the father because of how frightened X was of the father and the negative impact his time with the father had on X.
The father says the mother thought the allegation of unacceptable risk would make it easier for her to obtain an order for sole parental responsibility, and then to move to Town K where her new partner Mr R lives. The ICL supported the mother’s proposal, whilst rejecting the mother’s submissions that the father posed an unacceptable risk to X and required supervision.
Issues:
I. Whether or not the father poses unacceptable risk.
II. Whether or not the mother has the capacity to meet X's need for formal education.
Applicable law:
B and B [1993] FamCA 143; (1993) FLC 92-357 - the Full Court of the Family Court of Australia said that where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Briginshaw v Briginshaw (1938) 60 CLR 336 - where the Court held that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Carlson & Fluvium [2012] FamCA 32 - Justice Kent in the Full Court said that as a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise
HG v R [1999] HCA 2; (1999) 197 CLR 414 - characterized evidence as a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.
McCall & Clark [2009] FamCAFC 92 - where it was held that in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 - provided that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove."
Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR - where the Court ruled that one of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved.
R v Turner [1975] QB 834 - the Court ruled that before a court can assess the value of an opinion it must know the facts upon which it is based.
Stott & Holgar and Anor [2017] FamCAFC 152 - an eminent former judge said that the unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
Analysis:
In November 2018, whilst there was still conflict between the parents, X was spending unsupervised time with the father on a regular basis and both parties were content to continue with the arrangement.
There was no suggestion by the mother, or view formed independently by the Family Consultant who was given the relevant evidence, that the father posed an unacceptable risk of psychological harm to X, or that supervision was required.
The only arguments were as to parental responsibility, where the Family Consultant supported equal shared parental responsibility, and as to overseas travel. The father has admitted conduct which clearly falls within the definition of family violence.
The father has the capacity to provide for X’s educational needs by making him go to school every day, helping him to assess the support available in the public school system, and by supporting him with homework to the extent the father is able to do so.
The mother’s opposition to mainstream schooling, her inability or unwillingness to make X attend mainstream school on a regular basis, the inadequacy of her home schooling regime, and her failure to recognise the long term risks to X of lacking a formal education, goes to show that the mother does not have the capacity to meet X’s need for a formal education.
Conclusion:
The Court concluded that the father does not pose an unacceptable risk. The Court ordered that all previous orders concerning X born in 2011 (“X”) made pursuant to the Family Law Act 1975, be vacated and discharged. The Father and the Mother are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of X. X is ordered to live with the Father.
X shall spend time with the Mother on weekends, special occasions, and during school holidays anywhere in Australia as the Mother may deem fit. The father is within 6 months of these orders to complete a course about the developmental needs of a child of X’s age and to complete, on a without admissions basis, an anger management course, and is to provide a copy of the certificates of completion to the mother and the ICL.
