BEDWELL & GAISFORD

[2020] FCCA 3472

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEDWELL & GAISFORD [2020] FCCA 3472

Catchwords:
FAMILY LAW – Parenting – interim application concerning a child who is 11 years old – whether the child should be permitted to relocate interstate to take up a school scholarship – where the father opposes the child relocating at the current time – where the child has told a family consultant she wishes to relocate – where the child’s wishes should be given significant weight. 

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS BEDWELL

Respondent: MR GAISFORD

File Number: DNC 548 of 2020

Judgment of: Judge Young

Hearing date: 8 December 2020

Date of Last Submission: 8 December 2020

Delivered at: Darwin

Delivered on: 8 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Cooper

Solicitors for the Respondent: Maleys Barristers & Solicitors

ORDERS

UPON NOTING

That the parties were encouraged to attempt to agree on a plan to help build the child X’s relationship with his father in consultation with any psychologist or therapist dealing with X.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child Y born in 2009 (“Y”) be permitted to attend B School in Adelaide in 2021.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:

Time

1. That Y spend time with each party as follows for Christmas,

   (a)in all even numbered years, Y spend time with the Father from 12 noon Christmas Eve until 2pm noon Christmas Day and Y spend time with the Mother from 2pm noon Christmas Day until 5 pm Boxing Day;

   (b)in all odd numbered years, Y spend time with the Mother from 12 noon Christmas Eve until 2pm Christmas Day and Y spend time with the Father from 12 noon Christmas Day until 5pm Boxing Day.

Special Occasions.

1. That the usual time spent arrangements contained in these orders be suspended while each parent is spending the following periods of significance with the children:

   (a)On the children’s birthdays in each and every year with the parent who doesn't otherwise have the child in their care, to have the birthday child from 1.00pm until 7.00pm on non-school days and 3.00pm till 6.00pm on school days;

   (b)With the mother on the mother's birthday in each and every year from 9.00am until 7.00pm on non-school days and 3.00pm till 6.00pm on school days;

   (c)With the father on the father’s birthday in each and every year from 9.00am until 7.00pm on non-school days and 3.00pm till 6.00 pm on school days;

   (d)With the father on Father's Day each and every year from 9.00am till 6.00pm on that day; and

   (e)With the mother on Mother's Day each and every year from 9.00am until 6.00pm on that day.

Communication

1. That the parents shall only communicate by text message or email, except in the event of an emergency.

2. That the children be permitted to communicate via phone of Skype or have equivalent video communication with the parent who does not have the care of them of their own initiative, with the parent who has care of the children to facilitate this communication and to afford the child privacy during the calls.

3. That each parent will immediately notify the other parent of any medical or other emergency related to the health and welfare of the children.

4. That each parent will advise the other parent of their respective telephone numbers (including mobile and landline numbers), Skype username and residential address and each parent shall within 48 hours of any change to either their telephone number or residential address, advise the other parent of that change.

5. That each parent be entitled to obtain directly from any school attended by the children, copies of any school reports, school photos or any other verbal or written information relevant to the children’s education, and for this purpose, each parent will immediately notify the other parent of the names and contact details of any school attended by the children and keep the other so informed.

6. That each parent be entitled to obtain directly from any health or welfare professional or any other professional attended by the children, copies of any reports, notices of other relevant verbal or written advice relating to the health and welfare of the children and for this purpose, each of the parties will immediately notify the other party of the names and contact details of any relevant health or welfare professional and keep the other so informed.

Injunctions

1. That without admission as to liability/ the need, each parent be restrained by injunction and an injunction issue restraining each parent from:

   (a)Denigrating the other parent or members of the other parents’ family to the child/ren or in the child/ren’s hearing or presence, or allowing anybody else to do so; or

   (b)exposing the child/ren to abuse (including verbal abuse) or family violence, and that each parent will take all measures necessary to remove the child from an incident of family violence should such circumstances arise.

2. The parents be restrained and an injunction issue restraining the parents from:

   (a)discussing inappropriate adult issues with the children.

   (b)discussing or otherwise exposing the child/ren to the particulars of the family law proceedings.

3. That the parties encourage and not undermine each child’s relationship with the other party.

Psychologist

1. That the child X born in 2012 shall continue to attend upon Ms C, psychologist, and the parties shall seek a report from the psychologist in relation to the psychologist’s perception of X’s relationship with the father, and strategies for managing that relationship.

2. That parties are to follow the advice of X’s psychologist Ms C about what steps to follow in building the child’s relationship with the father, including her recommendations as to what time spending is appropriate.

3. That the father is permitted to approach X’s psychologist and seek information directly and this order is to authorise the psychologist to speak to either party and provide any relevant information.

Territory Families

1. That pursuant to section 69ZW of the Family Law Act 1975 the Territory Families provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the children Y born in 2009 and X born in 2012;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Territory Families in the course of investigating any such notifications.

2. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families without the Courts leave.

Parenting Course

1. That the parties shall enrol in a post-separation parenting program, being “For the Kids” facilitated by D Counsellors or another appropriate program.

2. That the matter be adjourned to 27 April 2021 at 2.15pm for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Bedwell & Gaisford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 548 of 2020

MS BEDWELL

Applicant

And

MR GAISFORD

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. On 6 October 2020 this matter came on for mention.  In addition to making an order for a child inclusive memorandum, I made an order that there would be an interim hearing today in relation to one issue, that is, whether the child Y would be permitted to attend boarding school in Adelaide next year.  No other issue of urgency was raised with me.

3. The child inclusive memorandum was rather broader in scope than simply dealing with that issue, and dealt with the question of X as well.  X is eight years old.

4. The issues concerning X were not ventilated before me on 6 October as far as I can recall but it is clear from the affidavit material filed that X is a child with special needs.  He has a diagnosis of autism, he is apparently supported in his school and is also attending on a psychologist to help him.

5. The issues concerning X, I am satisfied, are complex.  I am also told, both in the mother’s affidavit and I think in the child inclusive memorandum, that from time of the parties’ separation until X was an older infant, 4 years and 10 months as mentioned in the child inclusive memorandum), he saw little of his father, which raises questions about the strength of the child’s attachment to the father.

6. In the child inclusive memorandum Y raised with the family consultant some concerns about whether X was safe with his father when and if he threw a tantrum.  I understand from reading that, that behavioural dysregulation is an aspect of X’s autism and in substance Y was saying that during those periods of dysregulation she was wondering about the father’s management of that, putting it neutrally.

7. On 20 October, which was after the time the orders were made, there was an occasion where X refused to spend time with his father and it is apparent that the father did not press the matter on that occasion.  X has not spent time with his father since then.

8. In the child inclusive memorandum, the family consultant says that she attempted to interview X, but such was the extent of his autism that it was not possible to interview him.  X immediately began exhibiting signs of anxiety and distress in the conference or in the interview, and the family consultant decided not to pursue the matter.

9. From all of those factors I am satisfied that there are some very significant and complex questions in regard to X, his capacities, his relationship with his father and the strength of his attachment to his father and various other issues.

10. In the circumstances where the father seeks to raise for the first time at an interim hearing an issue about time-spending, and indeed he seeks orders of this Court that X spend time with him every second weekend from Friday to Sunday, which I acknowledge appears to have been the arrangement up until October, I am not satisfied that I have the requisite information before me to decide whether that is in X’s best interests.

11. The other issue, of course, is that up until now any time that X has spent with his father would appear to have been in the company of his older sister Y, who is 11 and appears a reasonably mature and intelligent girl.  If I make orders as I am asked to do, permitting Y to attend boarding school next year, any orders that X spend time with his father would be without Y present.  That adds another degree of uncertainty to the situation.

12. All in all, I am not satisfied that I have enough information to be satisfied that orders for X to spend time with his father at this interim stage are necessarily in the best interests of the child.  The parties have consented to an order that X will continue to attend on his psychologist Ms C and that they will follow the psychologist’s advice.

13. In addition, when invited by me, both parties have agreed to an order that the parties will follow the advice of Ms C in relation to re-establishing X’s relationship with his father and in relation to the time that X spends with his father.  It appears to me that is the appropriate order in the circumstances.

14. In regard to the interim application concerning the child, Y, who is 11 years old, the issue in dispute between the parents is whether Y should be permitted to take up a scholarship to attend B School, a private school in Adelaide. 

15. She has been offered a scholarship by the Australian Indigenous Education Foundation.  I might say that the child is an Aboriginal child.  The scholarship covers all boarding and tuition at the school and is worth $45,000 a year.  The mother, in her affidavit, says that if there are any extra expenses, she will be in a position to cover those.

16. I set this matter down for interim hearing in relation to this issue after making an order for the preparation of a child-inclusive memorandum which was intended to canvas Y’s own wishes.  Y participated in the interview with the family consultant via Microsoft Teams.  I will not include all of the material in the memorandum, but as I say, Y is an Aboriginal child, she clearly identifies with her Aboriginal heritage and her membership of the E People.

17. She is currently in year 6 at F School and if she remained in Darwin she would go to a middle school next year.  If she goes to South Australia she will go to senior school, so she will change school at the end of this year.  She is the school captain at her primary school.  She is socially successful, she has lots of friends, she is doing well academically and is a sports enthusiast.  She at one point said that she would like to be a scientist or an artist or an AFL Women’s football player.

18. Her school reports for this year, which are annexed to an affidavit, show the child is doing reasonably well academically, she is clearly a sports fan and is socially a reasonably mature child.  There is some material written by her annexed to the mother’s affidavit which is an application for a scholarship.  Reading that, which it appears to me is largely in Y’s own words I think, she appears to be a highly focused and mature for her age and competent.

19. She told the family consultant that she was very keen to go to Adelaide to boarding school.  The father makes it clear he believes whether this was the mother’s idea rather than Y’s idea.  However Y was unequivocal about that and she said that it is her idea and she wants to do it.  She is not doing it because her mother wants her to do it.

20. She was very conscious of the fact that she may miss her family and miss the activities that she does here in Darwin.  She had ideas about how she would manage her emotions.  When asked if there was anything she wanted the judge to know about her wishes, she said:

    The judge should be told I really want to go to boarding school.

21. She said that she really loves her mother and father and the rest of her family and she does not want her wishes to be misunderstood.  All in all, I was impressed by Y’s responses to the family consultant and I have, as I say, no doubt that Y is a very focused young person and that the wishes she expresses are entirely genuine and entirely her own.  Y sees boarding school as opening up opportunities for education and experience that she would not necessarily obtain in Darwin.  I accept all of that as genuine and as reasonable.  Whether or not it is correct, I do not know.  I hope for Y’s sake it is correct.

22. The father says that Y should not go.  He says in substance that she is too young.  He says that he would not have any objection if she went in years 10-12 and he annexes a letter from the school which suggests that a scholarship may be open in later years.  I was struck in reading the father’s affidavit material about this subject that he focuses on the mother’s conduct, that he blames the mother essentially for putting this idea into Y’s head and he says that he was not properly consulted about it.

23. What is missing from the affidavit material of the father is any evidence of any discussion with Y about what her wishes are.  That may be because he knows full well what her wishes are.  He does not address, for example, what he thinks might be the effect on Y if her clear wish to go to boarding school next year is thwarted.

24. I also asked the father’s counsel about what his proposal is for Y’s education next year if she is not permitted to go to Adelaide.  That material was also absent from the affidavit, which surprised me somewhat as really the contest is between Y attending B School in Adelaide and going to school in Darwin.  I would have thought there would be some consideration in the father’s affidavit material about the schooling available here.  I was told by counsel that that was not mentioned in the affidavit but the father’s proposal is that the child attend a denominational school, G School, at City H.  There was no evidence of any discussion between the father and Y about that school.

25. All in all, I was left with the impression from the father’s affidavit material that he is not so much focused on Y’s wishes and whether those wishes are in her best interests, as the view that he has formed that Y’s wishes are not genuine and should not be given full weight, primarily it would appear, is because of his belief that Y has unduly influenced by her mother.

26. While I acknowledge that Y is very relatively young – she will not turn 12 until next year – I am of the view that she is a relatively mature child who is focused on going to boarding school.  I think she should be given the chance to do that.  If it does not work out, if she becomes too homesick or she finds that the change of environment is overwhelming, I am sure Y will let everyone know that she wants to come home to Darwin.

27. I do not have any real doubt about her welfare at that school or in Adelaide.  I am sure she will remain in touch with her parents and as I say, if she strikes a problem moving away from home, I am sure she will let everyone know and she will acknowledge that herself.

28. So I am of the view that Y’s wishes should be given very significant weight and given effect.  I am not satisfied that the arguments raised by the father are particularly persuasive, so I propose to make the order sought by the mother.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 21 December 2020