Controversial Verdict in Parental Custody Battle: Allegations of Physical and Sexual Abuse Persist
Martins & Sequeira [2022] FedCFamC1F 925 (9 December 2022)
The parents of X have a poor co-parenting relationship and never had a stable relationship with each other. The father wants X to live with him and spend time with the mother, while the mother wants to continue the current arrangement.
Facts:
The father is employed full-time and lives alone in New South Wales. A 33-year-old mother from Country J, who has lived in Australia since 2015 and is self-employed, lives with the father and their child X. The two had a brief relationship in 2018, but their relationship became unstable. The mother did not have a permanent right to reside in Australia, but the father helped her apply for a Partnership Visa, loaned her money for it, and assisted in finding housing for them.
The father claims the mother used marijuana during her pregnancy and was emotionally volatile, while the woman claims the man was abusive and drank to excess. An expert psychiatric report recommended the man manage his alcohol use and avoid using drugs. The case is about a dispute between an applicant (father) and a respondent (mother) over the custody and time-sharing of their child (X). In February 2022, the respondent claimed that the applicant posed an unacceptable risk of sexual abuse to X, but she later conceded that the evidence did not support her claims.
The respondent no longer alleges that the applicant poses any risk of harm to X. However, the applicant argues that the respondent's change of belief is not genuine and that she will continue to make risk allegations against him. The final orders sought by the applicant are for X to live with him and for him to have sole parental responsibility, with a graduated schedule of time with the respondent. The respondent's proposed orders are for equal shared parental responsibility, for X to live with her, and for X to spend time with the applicant following a specific schedule.
The independent children's lawyer proposes that the applicant have sole parental responsibility, X live with the applicant, and X spend time with the respondent under certain conditions, including ongoing treatment by a mental health professional and refraining from using medicinal cannabis.
Issue:
The respondent initially claimed that the applicant posed an unacceptable risk of sexual and physical harm to X, but later conceded that the evidence did not support this. The applicant wants X to live with him and spend time with the respondent, while the respondent wants equal shared parental responsibility and for X to live with her. The independent children's lawyer proposes the applicant have sole responsibility and X live with him, with the respondent having supervised and limited access. The outcome depends on the authenticity of the respondent's belief and the best interests of X.
Applicable law:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.06 - provides that unless the parties agree otherwise or the court otherwise orders, the parties (but not an independent children’s lawyer) are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.
Family Law Act 1975 (Cth) s 121 - leave is granted to the parties and their legal representatives to provide a copy of these orders to:
(a) any school, education institution or care provider;(b) any treating medical practitioner, psychologist, hospital, or other health care professional that the Mother and child attend upon; or
(c) any government department or instrumentality;
that may seek or require to hold a copy of these orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).
Analysis:
The Court found that the respondent, who is the mother of X, still believes that X is at an unacceptable risk of sexual abuse and physical harm in the applicant's care, despite denying this belief during cross-examination. The Court also finds the respondent to be an unreliable witness and dismisses her claims about X's behavior changes as uncorroborated. The judgment concludes that exposing X to the respondent's beliefs will not benefit her and that she is likely to grow up believing that her father poses a risk to her.
Conclusion:
Both the applicant and the respondent have equal responsibility for major decisions concerning the child. The child lives with the applicant, but spends time with the respondent, with specific times and dates outlined. Communication and changeover between the parents is to occur at designated locations and the parties are responsible for keeping each other informed of their current residential and contact information. The child is to attend only one designated medical practitioner and medical emergencies or referrals must be communicated to the other parent. The respondent is restrained from taking the child to certain health practitioners without prior consent. Both parties are authorized to receive information and updates from schools, medical practitioners, and other entities, but with limitations on further publishing the information.
Case: Martins & Sequeira [2022] FedCFamC1F 925
Judgment of: JARRETT J
Counsels:
Counsel for the Applicant: Mr Sorensen
Solicitor for the Applicant: Dawson Lawyers
Counsel for the Respondent: Ms Gajic-Pavlica
Solicitor for the Respondent: Derek Legal
Counsel for the Independent Children’s Lawyer: Ms McArdle
Solicitor for the Independent Children’s Lawyer: Carter Farquar Mediation & Family Law