Beach & Watson (No 3)

Case [2023] FedCFamC1F 215

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Beach & Watson (No 3) [2023] FedCFamC1F 215

File number(s): PAC 6212 of 2020
Judgment of: HARPER J
Date of judgment: 31 March 2023
Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where final parenting orders previously made in 2017 – Where mother has sole parental responsibility for the child –– Where child lives with mother and spends day time only with father –– Where child has never spent overnight time with father – Father seeks increase in time including overnight time – No contention of unacceptable risk of harm – Mother claims child is not emotionally ready to commence overnight time with father – Mother supports continuation of day time only with father – Where child suffers anxiety – Where child’s anxiety is the only barrier to commencement of overnight time – Where child may not harbour consistent views about spending overnight time with father – Child aligned with mother – Where Family Report writer deferred assessment of the child’s emotionally readiness for overnight time to child’s treating psychologist – Where child’s treating psychologist’s notes are largely illegible – Child’s treating psychologist not called as a witness – Insufficient evidence to support a conclusion that child is not emotionally ready for overnight time – Where overnight time may give child a chance for an enhanced meaningful relationship with the father – Consent order for sole parental responsibility to mother – Order for gradual increase in time with father progressing to overnight time – ICL to explain orders to the child – Child and parties to attend upon psychologist to assist in child’s transition to overnight time with father.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 65DAB, 61DA, 65D(1), 117(4)
Cases cited:

Beach & Watson [2017] FamCA 151

Beach & Watson [2021] FedCFamC1F 64

Beach & Watson (No 2) [2022] FedCFamC1F 844

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

M v S (2006) 37 Fam LR 32; [2006] FamCA 1408

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance
Number of paragraphs: 127
Date of hearing: 13–15 March 2023
Place: Sydney
Counsel for the Applicant: Ms Haughton
Solicitor for the Applicant: Soden Legal
Counsel for the Respondent: Ms Abdelraheem
Solicitor for the Respondent: Loveday Family Lawyers
Counsel for the Independent Children's Lawyer: Mr Butters
Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd

ORDERS

PAC 6212 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BEACH

Applicant
AND:

MS WATSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARPER J

DATE OF ORDER:

31 March 2023

THE COURT ORDERS THAT:

Continue reading Beach & Watson (No 3)

Sign in free to access the full text

Details
AGLC
Beach & Watson (No 3) [2023] FedCFamC1F 215
Case
[2023] FedCFamC1F 215
Decision Date

CaseChat Overview and Summary

In the matter of Beach & Watson, the Family Court of Australia was tasked with determining the appropriate parenting arrangements for a child, including whether overnight time should be introduced between the child and her father. The parents, who had a history of conflict, had previously been before the court in 2017, where final parenting orders were made. Despite these orders, the conflict between the parents persisted, leading to the father filing an application to vary the 2017 orders. The primary issue before the court was the amount of time the child should spend with the father and whether overnight time should be introduced.

The court considered the primary considerations under s 60CC(2) of the Family Law Act, which include the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The father argued that the mother had coached the child to adopt a negative view of him, thereby undermining his relationship with the child. The mother, on the other hand, was concerned about the father's past allegations of sexual assault, which, though not proven, had not been fully resolved. The court also considered expert evidence, including a Family Report and recommendations from a child psychologist. The Independent Children's Lawyer recommended that no overnight time should be imposed unless it was at the child's request and in consultation with her counsellor.

After weighing the evidence and considering the child's best interests, the court decided that overnight time should not be introduced at that time. The court found that the mother had not engaged in conduct that undermined the father's relationship with the child, but rather had concerns about the father's past allegations. The court also noted that the child had not expressed a desire for overnight time and that such a change could be detrimental to her well-being. The court ordered that the child continue to spend time with the father during the day and that any decision regarding overnight time should be made in consultation with the child's counsellor.

In conclusion, the court ordered that the parents contribute to the costs of the Independent Children's Lawyer and that each party bear their own costs. The court's decision was based on a thorough analysis of the evidence and a careful consideration of the child's best interests, ensuring that the arrangements made were in her interest and promoted her well-being.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The parties attended a mediation in February 2020, but regrettably failed to reach any agreement with respect to the commencement of overnight time.BACKGROUND The father was born in 1973 and is currently 49 years of age. He resides at DD Street, EE Town. There is a separate bedroom in the father’s house made ready for the child if she commences overnight time there. The father is self-employed. The father has two sons from a previous relationship. At the time of the 2017 hearing it became apparent that there were historic allegations that the father had sexually assaulted his two sons when they were three and five years of age. The boys were 19 and 21 years old at the time of the 2017 hearing. The charges of sexual assault were dismissed as the boy’s mother did not attend court. In addition there were an allegations of sexual assault and physical assault made by third parties. No charges were brought against the father with respect to the allegations of sexual or physical assault. These issues were extensively addressed in the 2017 judgment. No party raised these allegations as relevant during the course of the proceedings. The mother was born in 1983 and is currently 39 years of age. She is employed in two part time positions. She has a son of a previous relationship, K who is currently 19 years of age. K has always lived with the mother. The mother, K and the child currently reside at GG Street, FF Town NSW. The mother is hearing impaired as a result of a genetically inherited condition. The maternal grandmother has been deaf since a young age and the mother’s hearing loss began when she was an adolescent. The mother is bilingual in spoken English and Australian Sign Language (“AUSLAN”). The parents commenced a brief relationship in early 2012. The parents lived together for approximately three months and separated on a final basis in or around March 2013, before the birth of the child. The mother was previously involved in a relationship with Mr CC for approximately six years, during which time Mr CC spent significant time with the mother and the child. The mother and Mr CC separated in March 2022. This was not included in the mother’s affidavit. In cross-examination, the mother described it as “a random relationship” and suggested it was immaterial. The mother has not re-partnered. PROCEDURAL HISTORY Unhappily for the child, the making of final parenting orders in 2017 did not precipitate a lessening of the parental conflict or greater stability and predictability for the child. On 12 November 2020, the father filed both an Application – Contravention and an Initiating Application seeking to vary the 2017 orders. The matter was transferred from the Federal Circuit Court of Australia (as it then was), to the Family Court of Australia (as it then was) on 16 March 2021. The father filed a further Application – Contravention on 6 May 2021. I delivered judgment on 20 September 2021, wherein I determined that there had been sufficient change in circumstances to justify permitting the father’s Initiating Application, to progress: Beach & Watson [2021] FedCFamC1F 64. I made orders appointing an Independent Children’s Lawyer (“ICL”) and for the parties to attend upon a Court Child Expert for the purposes of the preparation of a Child Impact Report.

Evidence

Evidence Before The Court

Accordingly, the primary issue which remained to be determined was the amount of time the child spends with the father and whether overnight time should be introduced. Although it was common ground at the commencement of the trial that there were no risk factors for the child in the father’s care, the mother appeared to put in issue the father’s parenting capacity, while the father put in issue the mother’s capacity to encourage a meaningful relationship between him and the child. EXPERT EVIDENCE The child has been engaged in counselling with a psychologist, Ms HH since 2020, organised by the mother. This counselling was purportedly to assist the child in progressing to spend overnight time with the father. The mother did not call Ms HH as a witness, but tendered a number of her handwritten notes, produced under subpoena. The Family Report dated 3 March 2023, marked Exhibit 5, was based, as described by Ms Z, on the material filed by the parties so far in the proceedings, the Child Impact Report dated 17 December 2021, previous orders and judgments made in this matter, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. Ms Z recorded the observations made by her as a result of conducting interviews with the parents and the child. Ms Z was cross-examined by the parties at the Final Hearing. Ms Z made numerous references to Ms HH throughout the Family Report and during her cross examination. She acknowledged, in her report and in response to questions posed by the ICL that she was unable to decipher the handwritten notes of Ms HH, nor had she received any subsequent report or further communication from Ms HH. I will refer to the content of the report as necessary during the course of these reasons.Family Report Recommendations Ms Z made recommendations at [68] – [77] of the Family Report as follows:68. It is recommended that [B] continues to live with [Ms Watson]. 69. [Ms Watson] should retain sole parental responsibilities for [B]. [Mr Beach] should be permitted to liaise independently with professionals involved in [B’s] care, welfare and development. 70. Time between [B] and [Mr Beach] should continue to occur during the day, on either Saturday or Sunday, for between 6 – 8 hours. 71. Consideration should be given to time occurring on a fortnightly basis, one fortnight [B] could spend time with her father on either the Saturday or Sunday from 9am to 3pm or 5pm on each day. The other fortnight, she could spend Saturday and Sunday with him. 72. Additional time should occur during the school holidays and on special days. 73. No overnight time should be imposed, unless it is at [B’s] request and the decision is made in consultation with [B’s] counsellor, [Ms HH].74. [Ideally Ms HH] could provide a focused report on [B’s] progress with counselling sessions. 75. The parents should engage with [Ms HH] to seek input about how to focus on [B’s] needs and interests. 76. If the matter does not resolve, a s69ZW request should be sent to DCJ, specifically seeking a report from them about their involvement and any protective concerns they may hold. 77. If the matter does not resolve, an updated report may be useful in twelve months to review [B’s] experience and the parents’ capacity to abide by identified arrangements THE CHILD

Decision

Reasons for decision

The ICL applied for a contribution to their costs from each party. The father resisted this on the basis that he should not have to contribute to any of the ICL’s costs relating to the contravention hearing, he has limited means, and any costs’ order would cause him hardship (s 117(4) of the Act). The mother made a similar submission. However, it was accepted that the ICL had been of great assistance to the parties. In my view, the parties should make a contribution to the publicly funded service from which they have benefitted. I will order each party contribute to the ICL’s costs in the amount of $3,500 inclusive of GST. Although not intending to foreclose any application for costs, my initial view is that each party should pay their own costs.CONCLUSION For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

I turn then to the best interests of the child.PRIMARY CONSIDERATIONS In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence. The Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).Section 60CC(2)(a), “meaningful relationship” The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 (“McCall”); (b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]-[119]; and(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407. The father asserted that the mother has intentionally engaged in a course of conduct to undermine his relationship with the child by coaching her to adopt a critical and adverse narrative about him. The father believes that the mother’s denigration of him has caused the child to be reluctant to spend additional time with him. In his affidavit filed 16 February 2023, the father argued:38. I hold concerns that [B] has been coached into expressing negative views of her time with me despite the fun we have together. I consider it very likely that [Ms Watson’s] denigration of me and her ongoing anxiety as to [B] commencing overnights with me has caused [B] to shy away from expressing her desire to spend additional time with me. The father argued that the mother is unwilling to support the child’s relationship with the father and that this relationship has not been supported in the mother’s household. With respect to this belief, Ms Z observed in the Family Report:46. [Mr Beach] believed it was in [B’s] best interests to spend extended and overnight time with him. He was confident that [B] would embrace the opportunity. At the conclusion of the interview, [Mr Beach] warned the writer that if [B] offered a contradictory response, “it’s coming from her mother.”…62.… There is a portrayal of [Ms Watson] as opposed to the father being meaningfully involved in [B’s] care and intent on impeding time and a relationship with him. There may be some validity to this portrayal.