Boullard & Kirk (No 2)
[2023] FedCFamC1F 1030
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boullard & Kirk (No 2) [2023] FedCFamC1F 1030
File number(s): PAC 3045 of 2020 Judgment of: BERMAN J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Where the parties reach agreement for the children to live with the father and spend time with the mother – Where the mother has terminal illness – Where the mother seeks additional time with the children during the school holidays – Where the father opposes the orders – Consideration of children’s wishes – Consideration of the mother’s circumstances – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC. Division: Division 1 First Instance Number of paragraphs: 44 Date of hearing: 23 November 2023 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Ms Saw Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Katsanis Solicitor for the Respondent: First Choice Family Lawyers ORDERS
PAC 3045 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOULLARD
Applicant
AND: MR KIRK
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
1 DECEMBER 2023
UPON NOTING THAT:
A.The parties will endeavour to respect the views and wishes of the children including any arrangement for the children to spend time with and/or communicate with Ms Boullard (“the mother”) should she be receiving care and/or is otherwise hospitalised.
THE COURT ORDERS THAT:
1.Mr Kirk ("the father") have sole parental responsibility for the children, X born 2009 and Y born 2011(collectively "the children").
2.In relation to the father's exercise of sole parental responsibility:-
(a)the father must notify the mother by email of any proposed decision regarding the long-term care and welfare of the children;
(b)the mother must notify the father by email of any views concerning the proposed decision within seven (7) days;
(c)the father must take into consideration any views expressed by the mother, in relation to the proposed decision; and
(d)the father must thereafter notify the mother of his decision within two (2) days of doing so.
3.The children live with the father.
4.The children spend time with the mother as agreed and failing agreement, each alternate weekend from 5:30 pm on Friday until 5:30 pm on Sunday PROVIDED THAT the mother’s time is suspended during any period of school holidays.
5.The children spend time with the mother on the following occasions:
(a)During the Term 4 2023 school holidays and each Term 4 school holidays in an odd numbered years thereafter, for three periods of one week as agreed between the parties and failing agreement, from 10 am on 22 December to 10 am on 29 December and each alternate week of the Term 4 school holidays provided that the last period of one week shall be subject to the wishes of the children or each of them;
(b)During the Term 4 2024 school holidays and each Term 4 school holidays in even numbered years thereafter, for three periods of one week agreed between the parties and failing agreement, from 10am on 29 December to 10 am on 5 January and each alternate week of the Term 4 school holidays provided that the last period of one week shall be subject to the wishes of the children or each of them;
(c)During all NSW school term holidays, commencing Term 1 2024 for a period of one week, with such week to be agreed between the parties but subject to the wishes of the children as to which half of the holidays and to be communicated to the mother by the father no later than four (4) weeks prior to the conclusion of the school term; and
(d)On the Mother’s Day weekend from 5:30 pm Friday to 5:30 pm Sunday.
6.Should Father’s Day fall during a period when the children are spending time with the mother, the mother’s time is to be suspended and the children shall spend time with the father from 5:30 pm on Friday to 5:30pm on Sunday.
7.In the event that the mother cannot spend time with the children in accordance with order 4 to 6 herein due to her being hospitalised, the children shall spend make-up time with the mother on the following weekend.
8.In the event the mother's health has deteriorated to the stage that care is required, or the mother is otherwise hospitalised during the time which the children are to spend time with her, the children shall spend time and communicate with the mother in accordance with their wishes and, the father shall do all acts and things necessary to facilitate that time and/or communication.
9.In the event the mother's health has deteriorated to the stage that care is required, or the mother is otherwise hospitalised during the time which the children are to spend time with her, the children shall spend time and communicate with the mother in accordance with their wishes and, the father shall do all acts and things necessary to facilitate that time and/or communication.
10.A copy of these orders be provided to the children’s treating psychologist, Dr C, so that he may explain these orders to the children.
11.For the purposes of handover, unless otherwise agreed between the parties, handover shall take place between the parties or the maternal/paternal grandmothers at McDonalds B Town.
12.The children shall communicate with the mother by way of video call, each Saturday and Wednesday that the children are not in the mother’s care at 6 pm and otherwise in accordance with their wishes PROVIDED THAT the father shall do all acts and things necessary to encourage and facilitate that contact, including ensuring that the device on which we video call is to be made is switched on from 5:30 pm to 7:00 pm.
13.Each party is to notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.
14.The parties provide a copy of these orders to any out of school care, recreational organisation or school which the children from time-to-time attend and each party is to authorise such out of school care, recreational organisation or school to provide notices, newsletters and reports directly to each party.
15.Each party shall be permitted to communicate directly with the children’s school and sporting bodies to obtain any necessary information about the children’s progress.
16.Each party shall be permitted to communicate directly with the children’s psychologist, in order to make enquiries about the childrens current mental health.
17.In the event that the children suffer any significant injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable of said injury, illness or medical treatment.
18.The parties are hereby restrained, on a without admissions basis, from the following:-
(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)Discussing these proceedings with all or individually with the children or in their presence or hearing, unless required by a court Order and showing any of the children documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with them.
(c)Physically disciplining the children or permitting any other person to do so; or
(d)Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to any or all of the children, or in the presence or hearing of any or all of the children, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.
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 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 have been engaged in ongoing litigation in respect of the parenting arrangements for the children since 2020. By Amended Initiating Application filed 23 June 2022, the mother seeks that the parties have equal shared parental responsibility for the children, that they live with the father but spend time with the mother as follows:
(a)During school terms, each fortnight from 6.00 pm on Friday until 6.00 pm Sunday;
(b)The first week of each Term 1, 2 and 3 school holidays from 6.00 pm on the first Friday of the holidays until 6.00 pm on the following Sunday;
(c)For the first three weeks of the summer/Christmas school holiday period in even years and weeks, the last three weeks in even numbered years; and
(d)As otherwise agreed between the parties in writing.
By Further Amended Response to Initiating Application filed 3 November 2023, the father seeks that he have sole parental responsibility for the children and that they live with him.
It is his proposal that the children spend time with the mother as agreed and failing agreement as follows:
(a)Each alternate weekend from 5.30 pm Friday until 5.30 pm on Sunday;
(b)As and from 1 July 2024, in accordance with their wishes;
(c)Notwithstanding any other order, on the following occasions:
(i)During Term 4 in 2023 school holidays for a period of one week as agreed between the parties and failing agreement for the third week;
(ii)During Terms 1 and 2 in 2024 for a period of one week with each week to be as selected by the children and communicated to the mother by the father, no later than one week prior to the conclusion of the school term; and
(iii)On the Mother’s Day weekend from 5.30 pm to 5.30 pm Sunday.
The orders sought by the father also have a focus of restraining the mother from consuming alcohol in quantities that would lead her to have a blood alcohol level exceeding the current lawful limit from time to time for drivers holding Class C drivers’ licence in the state of New South Wales when the children are in her care.
On the first day of trial the parties were able to reach agreement on a final basis that the father have sole parental responsibility for the children, that they live with him and spend time with the mother as agreed and failing agreement, each alternate weekend from 5.30 pm on Friday until 5.30 pm on Sunday.
A Minute of Order tendered by counsel (Exhibit “1”) identifies the areas of agreement and narrows the remaining argument to the arrangements for the children to spend time with the mother during school holiday periods. Accordingly, the issues in dispute are of narrow compass.
BACKGROUND
The parties commenced their relationship in 2008 and separated in May 2013.
It is a regrettable feature of the proceedings that the parties have engaged in a long history of litigation likely to be damaging to the children.
Following orders made on 17 September 2013, the children lived in the primary care of the mother and spent alternate weekend time with the father.
It is not controversial that the Department of Communities and Justice (“DCJ”) became concerned that the mother had resorted to abuse of alcohol and at times exhibited behaviour consistent with paranoia and delusion.
For her part, the mother asserted that it was the family violence perpetrated by the father and his aggressive behaviour during the relationship and continuing into the period post-separation that triggered her abuse of alcohol.
DCJ intervened and placed the children initially into their care but then by orders made 28 April 2016, the children were placed in the care of the father.
For reasons that will be apparent, a tragic development was that the mother did not have any contact with the children from October 2016 until June 2019.
It is likely that between June 2019 and September 2020 the mother resumed a fleeting and uncertain relationship with the children until orders were made on 3 September 2020 which provided for the children to spend supervised time with the mother for three hours per month.
In mid-2020, the mother was diagnosed with a terminal illness. She engaged in intensive and unrelenting treatment comprising therapy and surgery.
In early 2023 the diagnosis of the mother’s condition was that her illness had spread which was then treated with therapy.
A further scan in mid-2023 revealed that the illness had continued to spread.
Dr D is the mother’s consultant medical specialist. A report dated 6 September 2023,[1] confirms the tragic prognosis that the mother’s illness is incurable and the typical life expectancy for people diagnosed with the mother’s illness is between six months and two years.
[1] Mother’s affidavit filed 23 October 2023, annexure “A”.
Whether it is the recognition by the parties that it is important that the children have a meaningful relationship with the mother in circumstances where their time with her is limited or a recognition that the parties’ circumstances have now been forced to change as a result of the mother’s diagnosis and prognosis, the reality is that the parties have been able to reach substantial agreement.
It is somewhat surprising that the remaining narrow areas of disagreement should not have been the subject of complete agreement.
CURRENT ARRANGEMENTS
The children live with the father in the home of the paternal grandmother, Ms E. The father is in employment and the care of the children is undertaken by a cooperative approach between the father and his mother. It is likely that the paternal grandmother undertakes a considerable role in the children’s lives.
The mother lives with the maternal grandmother.
The distance between the mother’s home and the children’s residence is over 200 kilometres and depending upon traffic conditions, the trip can take several hours.
Interim orders were made on 23 March 2023 which provided that the father have sole parental responsibility for the children, that they live with him and spend time with the mother as follows:
(1)Commencing 21 April 2023, in the following fortnightly rotation:
(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; and
(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 the Father’s Day weekend in each year.
The parties were able to navigate handover arrangements and agreed that they would conduct themselves in a civil and courteous manner.
Whilst not accepting the necessity to do so, the mother has also agreed that she will purchase a breathalyser unit to monitor her alcohol intake during the period that the children are in her care.
There is broad agreement that the interim arrangements have occurred without incident and moreover, that the children have gained a benefit from regular time with the mother.
PRINCIPLES RELATING TO PARENTING
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I note the directions contained in s 60CC(2A) of the Act, and I have regard to the allegation of the mother that the father has engaged in serious family violence.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised, then this must be the subject of delineation and comment.
PARENTING CONSIDERATIONS
The significant issue between the parties is the extent to which the children have indicated a preference for the arrangements that are to occur over the school holiday periods.
X is currently 14 years of age and Y will soon be 13 years of age. There is a reality accepted by each of the parties that if the children had a strong view as to the holiday arrangements, their views should be given significant weight.
There is also the reality of the circumstances in which the children find themselves namely, that the mother may not survive beyond 2024 or that her health may deteriorate to a point where she is not able to properly care for them.
At present, the mother’s health and current treatment regime does not interfere with her ability to care for the children. She also has the advantage of the maternal grandmother to assist. No issue has been raised as to any deficit or deficiency in the mother’s ability to provide for the needs of the children when they are with her.
Ascertaining the wishes of the children is not straight forward. The father relies upon the evidence of the paternal grandmother that the children would only wish to spend one week during the Christmas school holidays with the mother whereas her discussions with the children reveal that they recognise that their time with her is limited and they are keen to maximise their time and relationship with her.
The father seeks that the children spend one week with the mother during the Christmas holiday period. The mother seeks that it be each alternate week.
Either proposal is unlikely to cause significant disadvantage to the children given the tragic circumstances that arise from the mother’s health.
Any preference that might be expressed by the children for a shorter time with the mother must be tempered by the overwhelming importance of the children retaining fulfilling and happy memories of their relationship with the mother.
Doing the best that I can, I propose to make orders as sought by the mother but that the final week will be subject to the wishes of the children.
The remaining area of disagreement is not whether the children should spend one week in each of the short end of term holidays with the mother but rather when that is to occur.
Given the submission of the mother’s counsel that it does not matter to her whether it is the first or the second week of the holidays, I propose to fall in with the orders sought by the father but to extend the period by which the father is to advise the mother whether her time will be in the first or the second half of the school holidays to four weeks. This will enable the mother to be able to plan holiday activities.
Noting that the parties have agreed matters as set out in the draft minute of order (Exhibit “1”), I make orders as appear at the commencement of these reasons.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 1 December 2023
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