Sweet & Sweet [2022] FedCFamC2F 676 (27 May 2022)
The parties are in dispute over whether the children should spend time with the applicant father. The father has significant mental health and substance abuse issues. The Court, in making its final orders, was guided by the children's best interests.
Facts:
The parties commenced a relationship in 2009. The parties separated on or about 30 October 2020, at which time the mother ceased to sleep in the master bedroom and slept on a foldout bed in the children’s bedroom. Following their separation, the parties continued to live under the one roof until 19 February 2021, at which time the mother applied for a family violence intervention order (“IVO”). In 2011, the father sold his property located in Suburb N, Victoria which he had purchased prior to cohabitation.
The sale proceeds were used to discharge the mortgage and the parties agree that the balance of $100,000 was applied to purchase the former matrimonial home. The father contends that an additional amount of approximately $23,000 was applied, from the net proceeds of sale, for the purchase of furniture for the former matrimonial home. The father has not, however, provided evidence of such purchases. In 2011, the parties purchased the former matrimonial home situated at G Street, Suburb H, Victoria for $365,000 including stamp duty.
In 2012, the parties married. During 2013, the father sustained a carpal tunnel injury to his wrist at work. In late 2019, the father received a disablement payout from his superannuation fund totalling $254,000. The payment was made up of between approximately $100,000 and $105,000 in respect to total and permanent disablement of his right hand and the balance of $154,000 being superannuation benefits and interest which he had accumulated up until that point in time. The father paid an amount of at least $234,000 into an Bank O investment account.
As at March 2020, the amount held in the Bank O investment account remained at $234,000. As at 15 July 2021, the amount in the father’s Bank O investment account was $200,000, as recorded in the father’s financial statement filed at that time. The father contends that those funds have been expended and his Financial Statement dated 4 April 2022 does not include reference to any such funds. The children did not spend time with the father in respect to the period from 19 February 2021 until June 2021.
The father initiated proceedings in the then Federal Circuit Court of Australia on 27 April 2021. On 8 June 2021, interim orders were made for the children to spend time with the father on condition that the paternal grandmother was required to be in substantial attendance. On 3 September 2021, correspondence was received by the mother from the O superannuation fund in respect to a request she made for the purposes of these proceedings. Interim orders were made for the father to attend drug screenings.
The father has not attended for drug screening in accordance with those orders. On 7 February 2022, the mother applied for, and on 8 February 2022 obtained, a further interim IVO from the Magistrates’ Court of Victoria against the father and his new partner, following an incident that occurred on 5 February 2022 at the former matrimonial home where the mother lives with the two children.
Issues:
I. Whether or not the children should spend time with the applicant father.
II. Whether or not an order of equal or sole parental responsibility should be ordered.
Applicable law:
Family Law Act 1975 (Cth) s 60CA -provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration.
Family Law Act 1975 (Cth) s 61DA -provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A v A (1998) FLC 92-800; [1998] FamCA 25 - provides that the “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm.
B and B (1993) FLC 92-357; [1993] FamCA 143 - provides that in devising tests to determine whether unacceptable risk exists, 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 abuse and the possibility of benefit to the child from parental access.
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 - held that within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the
s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 - provides that an inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn
as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law.
Blinko & Blinko [2015] FamCAFC 146 - provides that having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.
Cotton & Cotton [1983] FamCA 18; (1983) FLC 91-330 - provides that if there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 - provides that the Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation.
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 - provides that an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved.
Drewett & Drewett [2012] FamCA 320 - their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in
s 4(1) and also the superannuation interests should be assessed. The other factors in
s 79(4)(d), (e), (f) and (g) would then need to be considered. The
s 75(2) factors would then be considered.
G & C[2006] FamCA 994 - where it was said that the enquiry “requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 - Neave JA, referring to the decision of White J in
Hughes, held at 70, [299] that it was, on the facts of that case, “self-evident” that the existence of both verbal and physical abuse suffered by the mother “would have made it significantly more difficult for her to discharge her role as homemaker and parent.”
Goddard Elliott v Fritsch [2012] VSC 87 - provides that when it comes to making findings on the evidence, the non-disclosure of a party, and the appropriation by a party of matrimonial property for themselves, may be taken into account when making findings on the evidence.
Graf-Salzmann & Graf [2015] FCWA 68 - provides that a judge is entitled to take a “robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position.
Hughes v Egger [2005] NSWSC 18 - White J of the Supreme Court of New South Wales rejected the argument that there was, on the facts of that case, an absence of evidence of the impact of domestic violence.
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235 - provides 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.
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127 - provides that having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement.
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 - provides that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within
s 79.
Loddington & Derringford (No 2) [2008] FamCA 925 - provides that there is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it
must be healthy, worthwhile and advantageous to the child.
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 - noted that the focus of the objects was on “ensuring that children have the benefit of
both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88 - set out the correct approach as to when it is appropriate for a trial judge to draw an inference on the basis of evidence presented in civil proceedings.
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 - provides that there is no doubt in the majority of cases there will be a positive benefit for the child 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.
Morgan v Bell [2011] VSC 302 - where his Honour held at [245] that it was “self-evident” the violent conduct to which the victim was subject “would have made it more difficult for her to discharge her role” as a homemaker and mother.
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 - confirmed that, before an order is made adjusting the parties’ property, the Court is required to make a determination that it is just and equitable to do so.
Stott & Holgar [2017] FamCAFC 152 - the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
Analysis:
During the hearing of this matter, the father failed to give responsive answers to questions on a number of occasions and, instead, took the opportunity to editorialise on the answers he gave to make critical and derogatory comments about the mother. The father generally failed to accept any wrongdoing on his part in respect to his interactions with the mother or in the discharge of his parenting responsibilities. At times, the father became emotionally dysregulated, shifting from mock laughter to crying, to angry gestures and shouting. His evidence was coloured by his stated perception that he has been the victim of unfair conduct perpetrated by the mother and the family law system, including the Court and lawyers who practice in it.
The mother’s answers were consistent with her affidavit evidence and other supporting documentation and they were also internally consistent with evidence she gave during the course of these proceedings. A precondition to the children spending ongoing time with the father and for that time to progressively increase was the father engaging in mental health therapy and undertaking supervised drug screening tests. The father has acted in a grossly irresponsible manner in failing to satisfy those conditions. His explanation provided in cross-examination for the fact that he did not read his emails, including because his phone was playing up, is implausible in circumstances where it is clear that he used his phone on a number of other occasions.
Conclusion:
All previous parenting orders made in this matter are discharged. The mother has sole parental responsibility in relation to the children.
#PropertySettlement #ParentalResponsibility
