Mother Appeals Final Parenting Order Granting Equal Shared Parental Responsibility Despite Father's Admission of Family Violence
Carter & Wilson [2023] FedCFamC1A 9 (10 February 2023)
The case involves a dispute between a mother and father over their child's time arrangements after separation. The mother is appealing a final parenting order that granted equal shared parental responsibility, citing grounds such as not considering the opinion of the Family Consultant and making an error in finding the mother engaged in family violence. The father admitted to committing family violence against the mother and his daughter from a previous relationship, which was relevant to the primary judge's decision to deny the presumption of equal shared parental responsibility.
Facts:
The case involves a dispute between a mother and father over the time spent with their child after their separation. The father admitted to committing family violence against the mother and his daughter from a previous relationship, which was relevant to the primary judge's decision to deny the presumption of equal shared parental responsibility. However, controversially, the judge also found that the mother's conduct in limiting the time the child spent with the father and insisting on supervision amounted to controlling conduct for the purpose of the definition of family violence.
The mother is appealing a final parenting order that was made in April 2022, which granted equal shared parental responsibility for their child to both parents. The order was made after consent orders were agreed upon in January 2022, which outlined the child's time spent with the father on a graduated basis until he spends alternate weekends and one evening in the alternate week with him. The grounds of appeal include the trial judge failing to consider the opinion of the Family Consultant regarding Sole Parental Responsibility, making an error of fact in regards to communication between the parents, and not properly considering an order for Sole Parental Responsibility with Consultation.
The mother also claims that the judge made an error of fact and law in finding that she engaged in family violence. The appeal falls under the principles identified by the High Court in House v The King and Norbis v Norbis, where appellate intervention may be required if the primary judge acted upon a wrong principle, allowed irrelevant matters to affect the decision, made a factual mistake, failed to consider material considerations, or made an unreasonable or unjust decision.
The father and mother met in 2013 and began a relationship in 2014. Their child was born in 2016, and the parties separated in May or June of that year. After separation, the father had limited supervised time with the child. The father has another child from a previous relationship, who he had mistreated and was the subject of a domestic violence order.
The mother argued that the presumption of equal shared parental responsibility should not apply due to the father's history of abuse. The father's initiating application was returnable on January 30, 2019, and interim orders were made for the child to live with the mother and spend supervised time with the father. The father was self-represented in court, and the parties were ordered to attend family counseling and for the appointment of an independent children's lawyer. The family report writer suggested that if the child was not at risk of harm, it would be beneficial for the father to have increased time with the child, gradually leading to unsupervised time.
The family report concluded with recommendations that the child live with the mother and that the mother have sole parental responsibility for the child, with the child's time arrangements subject to judicial determination.
Issue:
The issue in this case is the determination of the child's time arrangements between the parents, in light of the father's history of mistreatment of another child from a previous relationship and the mother's argument that equal shared parental responsibility should not apply.
Applicable law:
Family Law Act 1975 (Cth) ss 4AB - provides that family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - provides that a factual finding is not open if there is an absence of credible and relevant evidence to support the finding.
Analysis:
The mother contended that the primary judge failed to give careful consideration to the opinion of the Family Consultant regarding sole parental responsibility. However, the court held that the ultimate decision is for the trial judge, and his Honour did consider the evidence of the Family Consultant but did not agree with her conclusion or recommendation in respect to the issue. The primary judge's conclusion was reasonably open on the evidence, and no appealable error was established. The mother is challenging the primary judge's decision to grant shared parental responsibility, arguing that the judge made an error of fact by finding that the parents will be able to communicate and reach agreement on matters in the future.
The primary judge had noted that the parents had been able to agree on certain matters, such as schooling and spend time arrangements, and expressed hope that they would be able to agree on other matters in the future. However, the mother argues that there is evidence of ongoing disagreement between the parents on matters such as the child's speech therapy, treatment of developmental delay, and location for contact visits. The court held that a judge is not required to detail each factor considered, and that the primary judge had considered both evidence of past difficulties in communication and evidence of hope for improvement, and had not made an error of fact in granting shared parental responsibility.
Conclusion:
The appeal was dismissed, and the Court granted costs certificates to both the appellant and respondent under the Federal Proceedings (Costs) Act 1981 (Cth), which authorizes the Attorney-General to make payments to each party for the costs incurred in relation to the appeal. The Independent Children's Lawyer was also granted a costs certificate.
Case: Carter & Wilson [2023] FedCFamC1A 9
Judgment of: MCCLELLAND DCJ, BENNETT & CAMPTON JJ
Counsels:
Counsel for the Appellant:Mr Macarounas
Solicitor for the Appellant: Rowlandson & Co Solicitors
Counsel for the Respondent: Mr Blank
Solicitor for the Respondent: Horowitz Bilinsky Pty Ltd
Counsel for the Independent Children’s Lawyer: Ms Tabbernor
Solicitor for the Independent Children’s Lawyer: John Spence & Associates
