Boullard & Kirk
[2023] FedCFamC1F 184
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boullard & Kirk [2023] FedCFamC1F 184
File number(s): PAC 3045 of 2020 Judgment of: BERMAN J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – CHILDREN – Interim – where there is a long procedural history to the matter – where the mother was previously determined by DCJ to be unable to appropriately provide and care for the children – where the mother abused alcohol and placed the children at risk – where the current Orders provide for the mother to spend limited, supervised, time with the children – where the mother has a terminal illness and seeks orders to increase her time with the children before she is physically not able to – where the father and the ICL agree that there should be an increase of time – where the parties live over 250km apart – consideration of s 60CC of the Family Law Act 1975 (Cth)– Consideration of Marvel & Marvel (2010) 43 Fam LR 348 – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3) Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel v Marvel (2010) 43 Fam LR 348
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 17 March 2023 Place: Adelaide via MS Teams Counsel for the Applicant: Ms Elias Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Katsinas Solicitor for the Respondent: First Choice Family Lawyers Counsel for the Independent Children's Lawyer: Mr MacDiarmid Solicitor for the Independent Children’s Lawyers Mark MacDiarmid Family Law Specialist ORDERS
PAC 3045 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOULLARD
Applicant
AND: MR KIRK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
23 March 2023
THE COURT ORDERS:
1.That all previous parenting orders are discharged.
2.That the father shall have sole parental responsibility for Y born 2011 and X born 2009 (collectively “the children”).
3.That the children shall live with the father.
4.That the children shall spend time with the mother as follows:
(a)From 10.00 am until 3.00 pm on each alternate Sunday commencing 26 March 2023;
(b)Commencing on 21 April 2023, in the following fortnightly rotation:
(i)Week 1 commencing on Friday 21 April 2023;
A.From 5.30 pm on Friday to 5.30 pm on Sunday and each alternate weekend thereafter;
B.Via video call at 6.00 pm on each Wednesday and Saturday;
C.From 5.30 pm on Friday to 5.30 pm on the Sunday of the Mother’s Day weekend in each year; PROVIDED THAT the children’s time with the mother shall be suspended from 5.30 pm on Friday to 5.30 pm on the Sunday of Father’s Day weekend in each year.
5.That changeover shall occur as agreed between the parties or their nominees and failing agreement at McDonalds Restaurant B Town inside the restaurant, and both parties shall ensure that during changeovers:
(a)Each parent and their nominees will behave in a civil and courteous manner to the other parent and any other person who may be present;
(b)Each parent and their nominees will conduct themselves in a child focused manner;
(c)Each parent and their nominees will limit their conversation to matters that specifically pertain to immediate matters of the child or children passing from one parents care to the other;
(d)Neither parent will discuss issues of controversy between them.
6.That if she has not already done so, as soon as reasonably practicable but in any event within 14 days of the date of these orders, the mother shall at her own cost obtain a mobile personal breathalyser unit (“the unit”) which complies with Australian Standard AS3547.
7.That upon the mother having obtained and configured the unit, the mother shall thereafter use the unit not more than 30 minutes prior to the children coming into her care and at 10.00 am, 3.00 pm and 8.00 pm on each day the children are in her care.
8.That both parents shall keep the other advised at all times of their email address and contact telephone number and shall advise the other party within 48 hours of any change to either their email address or contact telephone number.
9.That each party shall permitted to communicate directly with the children’s school, sporting bodies and medical practitioners to obtain any necessary information about the children’s progress.
10.That each party is entitled to attend all school events and extra-curricular activities that a parent would ordinarily be invited to attend.
11.That each party shall do all thing necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
12.That both parties shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.
13.That without limitation to any other order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis.
14.That without admissions, when the children are in their respective care each parent is restrained from:
(a)Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of NSW when the children are in their respective care;
(b)Consuming any prescription medication other than as prescribed;
(c)Consuming any illicit substance;
(d)Physically disciplining the children or permitting any other person to do so;
(e)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence.
15.That the matter be listed for further directions on 4 July 2023 at 9.00 am (Adelaide time) with liberty to vacate.
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 Boullard & Kirk has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Boullard (“the mother”) and Mr Kirk (“the father”) are the parents of X born 2009 and Y born 2011 (collectively “the children”).
The parties are not able to agree the final parenting arrangements in respect of the children.
The parties commenced a relationship in 2008 and separated in 2013. Orders were initially made that the parties have equal shared parental responsibility with the children to live with the mother and spend time with the father on each alternate weekend.
The mother proved unable to appropriately care for the children by reason of her abuse of alcohol and resultant behaviour which had the potential to place the children at risk.
The Department of Communities and Justice (“DCJ”) intervened and the children were placed into the care of DCJ by Orders made 28 April 2016. The father was considered to be a safe parent and following a probationary period, the children were placed in the father’s full time care.
The mother did not see the children between October 2016 and June 2019.
The mother commenced proceedings in June 2020 and ultimately, limited time between the mother and the children resumed. Initially, the mother was able to communicate with the children via the telephone and then Orders were made on 3 September 2020 which provided for the children to limited supervised time with her.
The current Order made on 3 June 2021, provides for the children to spend time with the mother from 10.00 am to 3.00 pm on the second and fourth Sunday of each month, supervised by the maternal grandmother or the maternal aunt, at a public place within 30 minutes of the father’s residence as may be agreed between the parties.
In addition, the mother is able to spend time with the children via a video call on the first and third Saturday of each calendar month commencing at 6.00 pm for a period of not more than 15 minutes.
The family has been in high conflict in circumstances where each of the parties allege entrenched family violence during the course of their relationship.
It is not in issue that the mother resorted to the use of alcohol at a problematic level, the consequences of which were self-evident by the decision of DCJ to assume sole parental responsibility for the children.
There is little doubt that the children are aware of the heightened ongoing conflict between the parties.
The transition of the children between the parties has been one of conflict and is redolent with allegations made by each of the parties as to the aggressive and uncooperative conduct of the other.
Family dynamics involving the children was the subject of a family report dated 22 November 2021. The detrimental effect on the children of the ongoing conflict between the parties is summarised by the report writer as follows:-
124.Each parent and each of the children reported that there has been conflict at the children’s transitions. It would appear that there is a long history of acrimony, poor communication and conflict which may have been exacerbated at times by one or both parents use of alcohol. There are high levels of mistrust between the parents and their attitudes and beliefs about one another appear deeply entrenched. It is highly concerning that the parents have been unable to facilitate the children’s transitions without exposing the children to their conflict. This type of behaviour can be very damaging to children and is likely reinforcing the children’s reluctance to spend time with [the mother]. Neither parent demonstrated capacity to reflect on how their behaviour during transitions may exacerbate the conflict and, consequently, negatively impact the children.
The report writer was concerned that an order for the children to spend time with the mother may not have the outcome of reinforcing a meaningful relationship but that “it may in fact irreparably damage their relationship”.[1]
[1] Family Assessment Report 22 November 2021, paragraph 125
The report writer did not consider that the father was attuned to reflect on the children’s experiences and loss of relationship with their mother and extended family and the recommendation was that the issues of conflict should be the focus of the current psychological therapy for the children.
The overarching recommendation of the report writer was that the children should live with the father and spend no physical time with the mother.
THE MOTHER’S APPLICATION
By Application in a Proceeding sealed 8 March 2023, the mother seeks that her current time with the children be expanded to each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday with a phone/video call on the Wednesday and Saturday of the first week and on the Wednesday of the second week.
The mother brings the application in tragic and unfortunate circumstances. She has received a medical diagnosis that her illness has worsened. Whilst she intends to undergo intensive treatment consistent with her diagnosis, her prognosis is terminal.
The mother relies upon a medical report from her treating medical practitioner which confirms that the mother’s illness is not curable and her survival time is likely to be less than twelve months.
The essence of the mother’s application is that she wants to maximise the time that she spends with the children before she is physically not able to do so.
In preparation for the hearing, the Independent Children’s Lawyer (“ICL”) and the father each provided a proposed minute of order. The mother adopts the orders now sought by the ICL save as to the process requiring the parties and the ICL to participate in legal aid mediation. For his part, the father broadly agrees with the ICL’s proposed orders but seeks that there be a more gradual process of introducing extended time between the children and the mother.
There are a number of significant issues that impact upon the broad thrust of the orders now being sought by the parties and the ICL. There is agreement that it is in the interests of the children to spend more time with the mother. The father remains concerned as to the ability of the children to connect with the mother in circumstances where the relationship is fractured. Residual concerns remain as to the mother’s potential to consume alcohol to a level that may place the children at risk. A further aspect is that the parties are geographically separate by over 250 kilometres. The logistics and mechanics of the travel arrangements present a hurdle.
INTERIM PARENTING
In Marvel v Marvel (2010) 43 Fam LR 348, the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121. …
122.In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:-
61.…. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
APPLICATION OF PARENTING PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act.
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act 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.
In applying the primary considerations as set out in s 60CC(2), s 60CC(2A) of the Act sets out that the Court is to give greater weight to the consideration set out in paragraph 2(b).
The Court must also take into account the additional considerations as set out in s 60CC(3) of the Act.
As discussed, the parties and ICL consider that it would be in the best interests of the children to spend more time with the mother.
Inherent in each of the proposals of the parties is a recognition that even at its best, the physical distance between the parties would only allow the children to spend time with the mother each alternate weekend with telephone/video communication in the intervening periods.
The ICL has been of significant assistance to the Court, the parties and the children. The children have been the subject of interview and the submissions of the ICL are to the effect that the children understand the circumstances in which they find themselves and are prepared to spend time with the mother without supervision and for the extended period as sought by her. The understanding of the children and their ability to maturely reflect upon the importance of their relationship with the mother is evidenced by their acknowledgment that spending time with the mother is more important than their sporting and other social commitments.
The presentation of the children to the ICL, and the accurate assessment of the children’s understanding of their circumstances by the ICL, demonstrates that significant weight should be attached to their wishes.
I propose to keep in place the current interim order for a short time but to discharge the need for supervision. It is a part of the mother’s case that she currently resides with the maternal grandmother and that the extended time that she will have with the children will be at her home.
The children are now of an age where they are better able to properly understand the environment in the homes of the parties and should they be placed at any risk, they are able to seek help and assistance.
It is also a relevant consideration that whilst inevitably the children will experience the mother’s deterioration in her health and eventually her death, they have the advantage of ongoing therapeutic support.
I make Orders as appear at the commencement of these reasons NOTING that I propose to bring the matter back for mention and/or further directions to enable the Orders to be adjusted depending upon the mother’s medical circumstances.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 23 March 2023
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