Father Facing Firearms Charges and AVO After Controversial Separation from Mother of Two
Mears & Hilton (No 2) [2023] FedCFamC2F 166 (21 February 2023)
The parents have been in a legal battle since 2018 over parenting arrangements, which have been complicated by the father's current relationship with Ms E. An interim AVO was placed against the father in April 2021 and in August 2021, the parents reached an agreement regarding parenting arrangements, though it was never recorded in writing.
Facts:
The mother and father are both 32 and 30 years old, respectively, and have two children together, aged four and three. The father currently lives two hours away with his partner, Ms E, and their two children, aged two and five months. In January 2018, the father contracted a sexually-transmitted infection and passed it on to the mother; it is not known if this caused the mother to go into early labor.
The parties separated in November 2020 after a heated argument, and the father and Ms E began a relationship that same month. In December 2020, the father was charged with a firearms offence after leaving the mother's unsecured firearm on a highway. In April 2021, an interim Apprehended Violence Order was entered against the father. In August 2021, the parties reached an agreement regarding parenting arrangements, though it was never recorded in writing.
The father has since filed an Initiating Application in Division 2 of this Court for final parenting orders, including equal shared parental responsibility, fortnightly visits, and communication via phone, Skype, or Facetime. The mother has responded with her own set of final and interim orders, including alternate weekend visits and supervised visits for a period of three months. Tensions have arisen between the parents due to Ms E being present
Issue:
Whether or not parenting orders should be made that are favorable to the mother.
Applicable law:
A v A (1998) FLC 92-800; [1998] FamCA 25 - established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm.
Analysis:
The mother has been the subject of a pattern of controlling and coercive conduct by the father, both during the period of their relationship and subsequent to its termination and the father’s conduct has, in many instances been self-centred rather than child focused. The mother also attested to being the subject of behaviour which she characterised as “gaslighting”, with the father saying things to her to “make [her] feel worthless and then make out everything was always [her] fault.”
Evidence of the father engaging in conduct of that nature is contained in a text message and annexed as Annexure “K” of the mother’s affidavit filed 24 November 2022 that was sent by the father to the mother on 10 July 2022 at 7.00 pm wherein, in the context of an exchange between the parties regarding what the father contended was the mother’s unacceptable refusal to permit him to facetime with the children outside their bedtime routine, the father stated “[y]our [sic] refusing to communicate to deal with the actual issues. Your issues surrounding abandonment should have nothing to do with the girls. You should go speak to someone about it”.
Conclusion:
The mother has sole parental responsibility for the children and they will live with her. Within 14 days, the mother must nominate three proposed supervision services for the father to choose from for the purpose of Orders 6, 7 and 8. Additionally, the children will spend time with the father in a supervised setting for two months and then with the father and his current partner and their children for an additional two months. The father must also attend a Parenting after Separation course and communicate with the children via facetime or telephone every Wednesday and other times as agreed. The parties are also restrained from insulting, belittling, degrading, rebuking or otherwise denigrating each other in the presence or hearing of the children and must apply for and maintain the children's Australian passports.
Case: Mears & Hilton (No 2) [2023] FedCFamC2F 166
Judgment of: JUDGE MCCLELLAND
Counsels:
Solicitor for the Applicant: Litigant in person (8-9 December 2022), GPG Lawyers (13 January 2023)
Counsel for the Respondent: Mr Blank
Solicitor for the Respondent: Culleton Lawyers Pty Ltd