Abner & Easley
[2021] FedCFamC2F 660
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abner & Easley [2021] FedCFamC2F 660
File number(s): ADC 3859 of 2020 Judgment of: JUDGE BROWN Date of judgment: 18 November 2021 Catchwords: FAMILY LAW – Children – parenting arrangements for two children – where the parties have a limited co-parenting relationship – best interests of the children – where the children appear to be torn between their parents – where a Family Report has been ordered – appointment of an Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60B, 60CC, 61DA, 65DAA Cases cited: MRR v GR (2010) 240 CLR 461 Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 18 November 2021 Place: Adelaide Counsel for the Applicant: Ms Annells Solicitor for the Applicant: Annells Lawyers Counsel for the Respondent: Mr Bersee Solicitor for the Respondent: Bersee Legal ORDERS
ADC 3859 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ABNER
Applicant
AND: MR EASLEY
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
18 NOVEMBER 2021
UPON NOTING
A.The Family Report is underway
THE COURT ORDERS THAT:
1.All previous orders are hereby discharged.
2.Until further or other orders the children X born in 2010 and Y born in 2012 do live with the mother.
3.The father spend time with the children as follows:
(a)During school terms:
(i)From after school on Friday until the commencement of school the following Monday on alternate weekends commencing 19 November 2021;
(b)During the forthcoming end of year school holidays as follows:
(i)From 3.30pm Friday 17 December 2021 until 5.30pm on 19 December 2021;
(ii)From 3.30pm 23 December 2021 until 3.30pm on 25 December 2021;
(iii)From 9.00am 26 December 2021 until 3.30pm on 30 December 2021;
(iv)From 9.00am on 5 January 2022 until 3.30pm on 9 January 2022; and
(v)From 9.00am on 20 January 2022 until 3.30pm on 23 January 2022.
(c)Normal fortnightly school term time pursuant to paragraph 3(a)(i) re-commences on Friday 4 February 2022.
4.The child X is not to be left unsupervised with any child under the age of 12 years other than Y.
5.All handovers which do not take place at the children’s school is to take place at the McDonald’s restaurant on the corner of B Street and C Street, Town D.
6.The parties be restrained and an injunction issue restraining each of the parties from:
(a)Denigrating the other party to or in the presence of the children or permitting any other person to do so;
(b)Discussing these proceedings with or in the presence of the children or permitting any other person to do so.
7.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2010 and Y born in 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within 14 days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.
8.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
9.Further consideration of the matter is adjourned to 16 February 2022 at 9.30am for directions NOTING the proceedings will be conducted face to face at Court in Town D.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abner & Easley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE)JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected of errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The parties in this matter are Ms Abner (“the mother” or “Ms Abner”) and Mr Easley (“the father” or “Mr Easley”). They are the parents of X (“X”), who was born in 2020, and Y (“Y”), who was born in 2012.
The parties have been separated for a very long time, close to a decade. It is the mother’s position that they separated when Y was a babe in arms. The mother commenced these proceedings on 18 August 2020. That is well over a year ago now, and for all sorts of reasons the case has not had the attention that it needed. Whether that is due to the pandemic, or other factors, I am not sure. I think the case needs some urgent attention.
The mother initially proposed that the children should spend time with their father on alternate weekends during school terms and on the other week of the fortnight from Monday until the following Tuesday. She had proposals for Christmas and proposed that handovers that could not occur at the children’s school happened at the McDonalds on C Street in Town D.
In her initial affidavit, she deposed that the parties were not able to communicate perfectly, but had been able to work out care arrangements until fairly recently, and there had been issues in their home, particularly in respect of arrangements for X’s care.
It is interesting that the parties had been able to reach a parenting arrangement in respect of care arrangements for their children. It is interesting that things seem to have got worse as soon as the parties have come into court. I am not really quite sure why that is so.
Anyway, when the case came into court for the first time late last year, the parties agreed on arrangements for the care of their two children, and that, of course, is to their credit, and on 26 November 2020 they agreed that what was proposed by the mother should be put into effect, and arrangements were made for the father to have a week with the children during the 2021 school holidays between 11 and 18 December 2020 and from 15 to 22 January 2021.
Arrangements were made for Y’s birthday, and at that early stage the parties were sent off to a Family Dispute Resolution conference in January of this year. That conference did not happen because there was a mix up, which is unfortunate. Something else went wrong. I am sorry about that.
Anyway, then there were some problems with the pandemic, and the case was adjourned, and finally the parties had their Child Inclusive Conference, in which X and Y were interviewed, and that was done in June 2021.
Following that, Ms Abner revisited her position, and she did that on 11 October 2021, and it is her position that the time that the children spend with their father should be significantly scaled back. It is the father’s position that there is a long-standing arrangement, and that would not be appropriate.
Family Consultant Mr E interviewed the parties, as I say, on 18 June 2021, and I have read the report very carefully. At that stage the issues in dispute between the parties was that Mr Easley wanted to have an equal time arrangement for the children, whereas Ms Abner’s position was that the children were not coping with longer periods of time.
This is not a case involving family violence. Neither party raised concerns about that, though Mr Easley said when the parties were in a relationship, Ms Abner was controlling and abused him. Ms Abner also said Mr Easley abused her.
As is often the case, the parties have each moved on, and they have each formed another relationship, as people do and as they are entitled to do. Ms Abner is involved with Mr F, and as I understand it Mr F and Ms Abner do not have any other children.
Mr Easley has formed a relationship with Ms G, and she is the mother of H, J and K, who obviously, spend a lot of time with X and Y when they are living with Mr Easley, and I am told today by Mr Easley’s solicitor, Mr Bersee, that Mr Easley has bought a big house with two storeys which has got lots of bedrooms, five I think, which is going to be fantastic for everybody.
The parties I am also told have each spent a significant amount of money getting to this point, and what seems to have occurred – sometimes it happens that the parties’ positions have become more polarised rather than less polarised. Anyway, be that as it may, the only independent evidence I have is what the parties have said to the Family Consultant.
It is Mr Easley’s position that Ms Abner is, in effect, coaching the two boys to have a negative view about him and Ms G and their situation in his household. Ms Abner’s position is that the children have raised concerns about the level of care that they have been getting in their father’s household.
The mother has concerns also about physical discipline, and the father believes that Mr F and Ms Abner drink too much, and that is dangerous for the children. The parties each have some special issues in their lives.
Mr Easley concedes that he had some issues with his mental health. He says to Family Consultant Mr E that he experiences anxiety, which leads onto depression, particularly when he interacts with Ms Abner.
Ms Abner also must have had a significant injury at some stage. She has some issues with her short-term memory. Ms Abner alleges that Mr Easley has issues to do with his mental health, resulting from his difficult childhood and what she alleges is some drug use.
On both sides, there seem to be multiple concerns. I am not here to pass judgment on anybody. I have limited evidence about that. As I said earlier, the parties’ view about what is happening in their relationship, and what is happening with the children is vastly different. Although it was said, at least at one stage, the parties were able to agree on some matters, that capacity is gone, and why that is so, I do not know.
During the interviews, the Family Consultant thought Ms Abner presented as motivated to be the best possible parent for the children, and was antagonistic towards Mr Easley. Mr Easley was described as being open with the Family Consultant, but is lacking some understanding regarding how the children were going, in what seemed to be quite difficult circumstances. In that context, the children were interviewed. Due to the pandemic, they were interviewed over the internet, and no doubt there are issues about that. It is not ideal. I agree, but at the time, that was the best that could be done.
X was described as being engaging and attentive. At the time, he was almost 11, so relatively mature, and certainly able to give an indication of what he likes. He has an interest in sport, particularly football and karate.
There are powerful issues about his relationship with Mr F. There were some issues raised about how he refers to Mr F as “Dad”. X was positive about his mother, saying that she “puts the kids first.”
X seems to have expressed some worries. He knew about court, and X explained that he was worried that “Mum was going to lose”, and “Mum was fighting for us”. That is X’s perspective, if that is right – I have, at this stage, no reason to say otherwise.
However, it is concerning that the child perceives that he is being fought over, because I have no reason to doubt that the parties both love X, and, indeed, Y as well, but the child’s perception is that he is being fought over, and, of course, it would be naïve to think that he can be kept away from these proceedings. He must know something is up, and that is causing him concern.
So he was asked – this is a trick that Family Consultants have. They often ask children: “what are your three wishes?” And you can tell a lot from those. Most children say, “I want a Nintendo,” or, “I want a bike,” or, “I want to go to Disneyland,” or whatever, and X’s wishes were to stay with Mum, never see Dad, and play darts with Mum.
Now, that was expressed in the context of vitriolic court proceedings between his parents, and I have concern, obviously, that the child is enmeshed. He is not to decide what his arrangements are. That is what his parents should do, or failing that, the court. I really do not want to make decisions about children if I can avoid it.
I certainly do not want to decide how they spend Christmas, their holiday arrangements and the like, because if I do it, I will get it wrong. I do not know the minutiae, the details of your lives, what is important to you, what is important to the children. However, that is the job I have, and I have to make a decision that is in the best interests of the children, with the information I have, as best I can.
X has apparently been going to one of the child-based programs, “Blast Off”, and he said it is about stuff going on with his mother and father. He said he found that helpful, and X also expressed some concerns that, “it is my fault”.
That is really concerning that a child is thinking that this problem is his fault, because at the end of the day, he is a child. He is not responsible for anything other than being a child, and there are some other complicated issues to do with his behaviour, which are, of course, deeply concerning.
Y is a little bit younger than his brother, but still relatively mature at nine years. He complained he had not been taken to the football by his father. There are some issues about how he described Mr F, and he talked about Mr F when he was asked about it, and he said “Dad”.
That’s a very complicated emotional issue for the parties in a case like this. Mr F is in a difficult position. Obviously, he is important to the two children concerned because he lives in the household, but these types of issues can create, for obvious reasons, a lot of emotional angst and hurt.
When he was talking about Mr Easley, Y was fairly negative, and that must have been quite difficult for Mr Easley to read. He complained about being treated roughly by his father, his wrists being held roughly, being smacked on the bottom by Ms G. I do not know much about the circumstances of all that, but it is the sort of issue which will cause a lot of conflict about how you approach disciplining your children. Y also expressed some negative views about J and H.
Y was positive about his father’s tablet, playing with X and Nintendo. Nothing unusual about that. So the children report a lot of conflict. They have got some negative views about their father.
There is a controversy about where that is coming from, and it is likely that it may be multi-faceted, issues about the children complaining, from their mother’s perspective, about not being warm enough. I do not know the truth about that. I do know that Town D is particularly cold, even if you have lots of blankets. Anyway, I do not know.
So in their summary, the Family Consultant said:
It’s plausible that the children have been exposed to the parties’ dispute and have been exposed to adult conversations about the litigation proceedings.[1]
[1] See Child Inclusive Conference Memorandum by Mr E dated 30 June 2021 at [50].
Obviously, it is highly plausible that the children have been exposed to the dispute between their parents. How could it be otherwise? Mr Easley’s concerns that the children may have been influenced, at least in part, by Ms Abner’s views remains somewhat unclear, and I am not in a position to unpack that, but it is not beyond the bounds of possibility.
It is possible that the children’s reported wishes are not influenced, but there is correlation between what the mother said, so Family Consultant Mr E says I perhaps have to be careful about the children’s views because of the conflict, because when children are in this very acrimonious situation, one way of coping is to align with one party. It is an easy thing for a party who wants a particular outcome to encourage that, either actively or passively. But the Family Consultant said:
Despite this, both children’s narratives indicate challenges at Mr Easley’s home in relation to common challenges associated with blended families.[2]
[2] Ibid [51].
It is tough for children to go backwards and forwards between households, especially when there are other children involved. It is tough, and there are issues. Issues around discipline, routines, parents, stepparents, siblings appear to have been a concern for the children. Family Consultant Mr E Outlines:
The narrative of both children indicate that there is likely the need for some relationship repair and special time between the children and Mr Easley, so the children need to keep on a relationship with their parents.
The parents’ lack of communication at present is an ongoing risk factor for the children’s emotional wellbeing. X was able to articulate feelings of being in the middle of the two parties.[3]
[3] Ibid [51]-[52].
Evidently, the children, especially X, appear to be torn between their mother and father.
THE LEGAL PRINCIPLES APPLICABLE
It is in that context that I have to do something, and I have to tell you about what the law is. The law is fairly complicated, no doubt about it, and I will tell you why it is fairly complicated. It is complicated because everybody who deals with the Family Law Act 1975 (Cth) (“the Act”), be they male, female, mother, father, thinks it is a crock of whatever you want to call it.
Significant governments have tried to fix it up, from right, from left, from the father’s perspective, from the mother’s perspective. It is now a complete morass of competing considerations, and I unfairly, perhaps, asked the lawyers: “what does the law say?” It says lots of things, and with respect, it is complicated, and even well qualified people find it difficult to articulate what the law is.
Everyone knows the best interests of the child is the paramount, or most important consideration. Everyone knows that, and that is how it used to be. When the Act commenced in 1975, that was just about the only consideration. However, over time, there are now a competing raft of other considerations. Basically, I have to look at a list of matters in the Act, and they are contained in section 60CC of the Act to determine what is in the child’s best interests.
I also have to bear in mind the principles and objects of the Act, which are contained in section 60B. It is the children who have the rights, not parents – children have a right to have a relationship with each of their parents and to be emotionally safe. Children should not be exposed to harm. Harm has two aspects: physical harm and emotional harm.
There are two primary considerations in section 60CC. I have to think about the benefits of children having a meaningful level of relationship with each of their parents. Meaningful is not defined, but it means significant. You have to spend enough time with a child for it to be meaningful. If you see a child five minutes every year, it cannot be meaningful, but there is no principle. The more time that you are able to spend with a child, the more likely the time will be more meaningful.
I am also required to consider how to prevent children from being exposed to family, violence, neglect or other forms of abuse. They are the primary considerations, then there is a longer list of additional considerations, about 14 of them.
I am required to consider the views of the child, and I have to look at what is affecting the views of the child, including the child’s maturity. It is not unknown that children express a view because they want to please a parent, or they are being manipulated. I have to be careful, but I have heard what the Family Consultant said. They say that there are issues about what these children want.
I have to look at the nature of the relationship of the child with each of their parents as well as other things. The issue of equal time is particularly difficult.
There is a presumption in the Act pursuant to section 61DA that it is in the best interests of a child that their parents have what is called equal shared parental responsibility for the child, so that deals with responsibility, not necessarily time. Responsibility means making decisions of a significant nature about your child, such as: education, religion, and health.
If the presumption applies, however, I am obliged to consider a child spending either equal time, or what is called substantial and significant time with each of their parents. Equal time is, as it says, equal time. Substantial and significant time is time that includes weekends, routine time and special occasions for a child.
Now, that presumption can be rebutted. It is rebutted at the interim stage if I think it is just not practical to apply it, and we are at the interim stage now, and I will tell you what the interim stage is.
Hearings at an interim stage are limited. I have not heard any evidence from either of you. I do not know what you are like in the witness box, and ultimately if this case goes to final hearing, I will see what you are like, or another judge will.
You will go into the witness box, and you will be cross-examined, and I will decide or some other judge will decide who is lying, who is telling the truth, who is fair dinkum, who is not fair dinkum.
At the moment, I just read affidavits, and you cannot test an affidavit, and people being people, they put the best possible spin on things when they prepare their affidavits. We are at the interim stage, and the presumption can be rebutted, if I think it is not appropriate to apply.
It is also rebutted if I do not think it is in the best interests of the children to be applied, or there are reasonable grounds to believe that a child has been exposed to family violence or neglect.
There is another proviso that applies to equal time. The High Court in a case called MRR v GR said that there are two things that have to be satisfied for an equal time arrangement.[4] Not only has it got to be in the best interests of the child concerned, but it has to be reasonably practicable to put into operation.[5] It has got to be logistically feasible. You cannot have equal time if one parent lives in Cairns and the other lives in Adelaide.
[4] MRR v GR (2010) 240 CLR 461.
[5] Ibid 466 [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
So the Act in section 65DAA(5) outlines what is required for an arrangement to be reasonably practicable. Parents have to live reasonably close to each other, and you do live reasonably close.
You live in the same provincial town, but parents’ must have current and future capacity to implement an arrangement for the child spending equal time or substantially significant time with each of the parents, so it has got to work. You have got to be on the same page. The Act says:
[T]he parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.[6]
[6] Family Law Act 1975 (Cth) s 65DAA(5)(c).
As I have outlined, satisfying this factor is not looking too good at the moment. The Act further states:
[T]he impact that an arrangement of that kind would have on the child.[7]
[7] Ibid s 65DAA(5)(d).
I have got the Family Consultant’s report. Things are not working too well at the moment. The Act also outlines that I am able to consider any other matters that are considered relevant. In this case, there are concerns that X has been behaving inappropriately with other children in a sexualised way.
That must be a major concern. Whether it is just youthful curiosity or something more sinister, or it is blown out of total proportion, I am not in a position to say, but the police have been involved. They are not going to take the matter any further. It is an issue, and there are issues about mistreatment and violent behaviour towards J.
It is a multi-faceted, difficult case, and also I think Ms G is expecting another child, so that is going to be another factor which makes the whole dynamic – a newborn child adds a level of complexity. Clearly, the two children, Y and X, they know Mr Easley well, and I have to think about the benefits of them having a meaningful level of relationship.
In the context of this interim hearing and the fairly complicated provisions of the Act, I have got to think of future directions. I do not think the presumption can apply, and I do not think equal time or substantial and significant time is reasonably practicable
I do not think it is working, but the children need to spend some time with their father, and that is certainly the view of the Family Consultant, because in mid-2021 they said, in terms of summary future directions, there is no effective co-parenting relationship and no communication occurring between the parties.
As such, time spending arrangements and agreement in the short and long term seem unlikely to resolve without further litigation. The parties have come to court, and I have got to do it. I do not want to do it, but I have to. I am not in the business, regrettably, of trying to keep everybody happy, because if I was, I would go insane. I cannot keep everybody happy. I have just got to do the best I can, and make the decision that I consider is in the best interests of the children.
A Family Report regarding the children’s relationship with their parents and other significant people in their lives has been ordered. I am sorry it could not have been done quicker. It is coming. In the interim, the Family Consultant is supportive of continued alternate weekend time spending, with requirements in place that the children are able to attend activities of recreation.
The need to spend Monday time, at the present time, remains in question, given that there is no current attendance about karate, and I have nothing against the kids going to Adelaide to spend some time with Ms G’s family, and I will do the best I can, which is ad hoc until we get the Family Report.
I will appoint an Independent Children’s Lawyer. Ms Atchison is almost certainly going to be the Independent Children’s Lawyer. The Legal Services Commission of South Australia will pick up the tab for her, and one of her roles is to be an honest broker between the two of you, because I think you need an honest broker.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 23 December 2021
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