Father Opposes Mother's Application for Sole Parental Responsibility
Suris & Suris [2021] FedCFamC1F 1 (2 September 2021)
The parties are in dispute over parenting orders for their three children. The mother asserts that the father poses an unacceptable risk of harm to the children. The father alleges the same against the mother. The court, in adjudicating this dispute, assessed the impact of the father's conduct on the children.
Facts:
The parties married in 2003 and separated in 2017. The parents have three children together. X was born in 2004, Y was born in 2006 and Z was born in 2008. Upon joining the Australian Defence Force in 2019, there was almost no contact between the father and his family for about three months and then minimal contact for the following 12 months. Throughout his service, the father was stationed in Brisbane which was about two hours’ drive from the former matrimonial home. The mother contends that the father was absent from home for six months per year throughout his service with the ADF.
After the parents’ separation in May 2017, the children initially lived with the mother and shortly thereafter in a week about arrangement between the parents’ households until 2018. The father retained the child, Y, after the Easter school holidays in 2018 and unilaterally changed her school from L School to N School. The child, X, commenced to live full time with the father after the September 2018 school holidays. In late October 2018 the father also retained the child, Z.
X voluntarily returned to live with the mother in October 2019. On 28 October 2019 a further interim order was made by consent giving effect to that arrangement and for Z to spend time with the mother ‘two weekends out of three’ and for Y to spend time with the mother as recommended by Ms G, a court appointed psychologist. The father failed to engage with Ms G as ordered. The parties both allege the other parent is an unacceptable risk of harm to the children. Each party largely denies the allegations made against them.
The father seeks to set aside the property order made by consent by a Registrar on 26 July 2019 which provides for the mother to receive a payment of $185,000 by way of two instalments and the father was to retain the former matrimonial home and a property at T Town. The consent order includes a default provision for the sale of the former matrimonial home in the event the father does not pay the sums required. The father paid the first instalment of $80,000 but not the balance.
Issues:
I. Whether or not Ms Suris should have sole parental responsibility for the children for major long-term issues.
II. Whether or not Mr Suris established a ground to set aside the consent order.
Applicable law:
Evidence Act 1995 (Cth) - provides that in cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities.
Family Law Act 1975 (Cth) s 79 - provides that orders altering property interests may set aside:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
...
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Bant & Clayton [2019] FamCAFC 198; (2019) FLC 93-924 - the Full Court of the Family Court of Australia (“the Full Court”) reviewed the role of the Court in assessing risk.
Baghti & Baghtiand Ors [2015] FamCAFC 71 - provided that the Court is not required to make findings of fact on every factual dispute raised by the parties.
Burge & Burge [2015] FamCA 178 - where his Honour noted that “[t]he central focus of the property proceedings, in circumstances where there was little other in the way of capital held by the parties or either of them in terms of interests in property, was the husband’s receipt of an invalidity benefit by virtue of his former role with the Public Service”.
Briginshaw v Briginshaw (1938) 60 CLR 336 - provided that in cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”.
Campbell v Superannuation Complaints Tribunal (2016) FLC 93-724 - Logan J in the Federal Court of Australia was dealing with an invalidity pension benefit paid pursuant to Military Superannuation Benefits Scheme.
Clifton & Stuart(1991) FLC 92-194 - where the incompetence of legal representation does not of itself affect the judicial process even though the result may be unjust to the party concerned, but may do so “if the representation is so bad as to be the equivalent of no representation at all or if the representation was perverse; for example if the representative was in league with the other side”.
Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 - the NSW Court of Appeal rejected the argument that it was not necessary for the other party to a contract, (to be set aside on the basis of duress), to have known of that matter.
Kesarmal v NKV Valliappa[1954] 1 WLR 380 - provided that knowledge of the facts, actual or constructive, constituting alleged duress by both parties to the contract is an essential element of a claim to have a contract set aside on this basis.
Holland and Holland [1982] FamCA 31; (1982) FLC 91-243 - the Full Court held that to succeed in an application under sec. 79A, the wife must show some circumstance leading to a miscarriage of justice.
Johnson & Page [2007] FamCA 1235; (2007)FLC 93-344 - provided that the court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In the marriage of P and P [1985] FamCA 10; (1985) FLC 91-605 - provided that the Court has power to refer the matter to the appropriate authorities if evidence of possible offences come to the attention of the Court, particularly those that may involve a fraud on the Commonwealth.
Lane & Lane[2016] FamCAFC 53; (2016) FLC 93-699 - where in order to succeed in his application to set aside the consent order the father must establish three things:
(a) That there is evidence to support one of the grounds in s 79A(1)(a); and
(b) That there has thereby been a miscarriage of justice; and
(c) That the Court should exercise its discretion to set aside the order.
M v M(1988) 166 CLR 69 - where the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child.
Malpass v Mayson [2000] FamCA 1253; (2000) FLC 93-061 - provided that whether or not a referral is made is within the discretion of the Court and “[q]uestions of degree must be relevant.
N and S and the Separate Representative [1995] FamCA 139; (1996) FLC 92-655 - Fogarty J said that the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
Suiker and Suiker(1993) FLC 92-463 - where whether or not the mother was receiving a single parent pension as alleged, any alleged fraud on the Commonwealth prior to May 2017 does not demonstrate some matter or circumstance “which had an influence on the outcome of the litigation”.
Thorne v Kennedy [2017] HCA 49; (2017) FLC 93-807 - explained that the vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction.
Williams v Williams[1985] HCA 52; (1985) 61 ALR 215 - where there can be no doubt that payments received by way of lump sum as compensation for injury can be included in the property pool for division between parties.
Analysis:
The children have been living with the mother since February 2020 and have not spent any time with the father since then. There is no evidence of any involvement by the Department of Children, Youth Justice and Multicultural Affairs in that time and the children’s school reports reflect that they are achieving well. On the other hand, the father has demonstrated a complete lack of insight into the impact of the children being exposed to parental conflict and his fixated ideas. As such, the impact of the father’s conduct on the children leaves no doubt that he presents an unacceptable risk of emotional and psychological harm to the children that cannot be ameliorated by supervision.
The father demonstrated, throughout the trial, a complete fixation on proving the mother to be in the wrong rather than focussing on what might be in the children’s best interests going forward.
The children expressed their desire to spend time with their father but recent attempts, for instance, the family report interviews, caused distress because the father used the session to dismiss the children’s feelings and engaged in a completely self-focused argument with the children. The children are well settled in the care of the mother who has developed a child focus perspective. X and Y have said they are happy and safe with the mother. X and Z, in particular, are progressing very well at school.
While the father asserts that the consent orders should be set aside for the reason that he signed them under duress, other than assert that he was in “no fit state to provide proper instructions” the father does not provide any evidence as to his state of mind at the relevant time and importantly gives no evidence about the mother’s knowledge of his state of mind at the relevant time.
Conclusion:
The Court ordered for Ms Suris to have sole parental responsibility for the children for major long-term issues. The children shall live with the mother. Furthermore, the Court is not persuaded that the consent order should be set aside as the father was unable to establish an evidentiary basis for the vitiating factor of duress. Mr Suris is restrained from having any contact or communication with the children unless initiated by the children. The father is restrained from approaching within 200 metres of the children unless by prior arrangement initiated by the children.
The father is to forthwith take all steps necessary to remove from any website or social media account or film, any account of any proceedings under the Family Law Act 1975 (Cth) that identifies himself, the mother, the children and/or a witness in the proceedings. A Registrar of this Honourable Court is to refer the following documents to the appropriate authorities for consideration of whether the mother should be investigated for possible offences under ss 66A, 67, 68 or 76 of the Social Security (Administration) Act 1991 (Cth) and/or ss 134.1, 134.2, 135.1, or 135.2 of the Criminal Code Act 1995 (Cth), and/or any other offences that the appropriate authority considers the mother has committed during the period 2010 to 2017.