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Father Opposes Mother Application for Sole Parental Responsibility

Quinlan & Ware [2021] FCCA 1767 (2 August 2021)

The mother alleges that the father poses an unacceptable risk because of allegations of family violence.  The father alleges that the mother is merely motivated to relocate and homeschool X in order to be with Mr R, her new partner.  The Court, in deciding on this dispute, assessed whether or not home schooling or mainstream schooling would fulfill X's educational needs. 

Facts:

The parties commenced living together in 2010. During the same year, the mother discovered that she was pregnant with child X who was born in 2011, now 10 years old, and is in year 4 at school.  The parties separated in late 2011.  The mother asserts that they separated due to family violence.  The father, on the other hand, asserts that the mother is manipulative and has “used the police and legal systems improperly to gain advantage”. This conflict has negatively impacted on X and his relationship with each parent.  

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.

The father opposed such a proposal 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 to protect X from both physical and psychological harm.  The father alleges that after seven years of unsupervised time, during which the mother regularly also asked him to care for X for additional periods while she travelled or worked, the mother met her new partner Mr R in mid-2019.  Mr R lives in Town K, where the mother liked to visit and has wanted to live for a long time.

The father sought a hearing date, supported by the Independent Children’s Lawyer, on the basis that: the mother had unilaterally removed X from school for home schooling contrary to the 2016 orders.  The father in particular opposes homeschooling as proposed by the mother because X is already some years behind academically.  The father exhibited to his affidavit  pages from the mother's Facebook account stating that she was flying to Town GGG for “a quick weekend, moving up in a couple of months”.  She further stated that “we are taking term 4 off and getting outta Sydney for now. Need some peace and quiet and greenery, just not cut out for this big-city life ☺”. 

On 17 September 2019 there was another post seeking to rent out her then current share house accommodation.  The mother accepted the Facebook messages were hers and that she was looking for someone to take over her room.  On 12 July 2019 the mother sent the father the text message advising him of the decision that X would not spend time with him and that she had notified her housemates, X’s school and the police of this change in X’s care arrangements.  The mother said she commenced her relationship with Mr R on 16 July 2019. By 3 September 2019 the mother was publicly stating on Facebook that she and X were going to move up to Town K in a few months and that they were taking term 4 off school to homeschool and travel. 

Issue:

Whether or not the father poses unacceptable risk.

Applicable law:

Evidence Act 1995 (Cth) s 140 - provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

Family Law Act 1975 (Cth) ss 4B60CA60CC65AA - provides that the Court is required to regard the best interests of each child as the paramount consideration when making parenting orders.
 
Adamson and Adamson [2014] FamCAFC 232(2014) FLC 93-622 - the Full Court said that in parenting proceedings, an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.

B and B [1993] FamCA 143(1993) FLC 92-357 - 
the Full Court of the Family Court of Australia said noted 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 - 
provided 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.

Fitzwater & Fitzwater [2019] FamCAFC 251 -
provided that generally the party who asserts a proposition bears the onus of proof. The standard of proof in proceedings pursuant to the Act is satisfaction “on the balance of probabilities”.

HG v R [1999] HCA 2(1999) 197 CLR 414 -
Gleeson CJ characterized evidence on “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”.

M v M(1988) 166 CLR 69 - 
the High Court considered the potential conflict between these considerations for the children's best interest and stated that in devising these tests, the Courts have endeavoured in their efforts to protect the child’s paramount interests to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. 

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305(2001) 52 NSWLR 705 - 
Heydon JA, as he then was, summarised many of the core principles applicable to the weighing of an expert opinion.
 
McCall & Clark [2009] FamCAFC 92 - where it was held that while there will be a positive benefit to a child of having a significant relationship with both parents, 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-
where 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 [1984] 2 NSWLR -
where if other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material.

Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR -
provides 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 - 
Lawton LJ said 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 -
the Full Court said unacceptable risk in the High Court’s formulation  is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.

Analysis:

X is in year 4.  X is perceived by his family to be a sensitive and intelligent child.  However, in November 2020 the mother assessed X’s reading level as being between kindergarten and year 1 which is a significant problem.  While X has phonological awareness difficulties which have impacted on his education and which need to be addressed, he has a full scale IQ in the average range and the intellectual capacity to do well academically, especially if supported in his weaker areas. 

The Family Consultant was concerned about the mother’s two hour per day home schooling regime and did not consider it sufficient.  She thought that attendance at school with additional support and special programs, if available, would be an option.  It was reported that X performed better when there was more continuity to his attendance.  The mother submitted that early in her pregnancy, there was a verbal argument when she went to pick the father up from drinking at a local pub which escalated into a physical incident.

The father denied most of the allegations of physical violence but acknowledged pushing the mother into a flowerbed because she was “threatening to kill herself and X”.  However, as at November of 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. 

Conclusion:

The Court concluded that the mother’s regime of two hours per day of formal schooling would be inadequate to address X’s educational needs.  The Court also held that there is no unacceptable risk on the part of the father.  The Court vacated and discharged all previous orders concerning X born in 2011 (“X”) made pursuant to the Family Law Act 1975.  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 shall live with the father, attend public school on a regular basis and spend time with the mother as agreed upon by the parties.

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