Brennan & Sahli

Case [2022] FedCFamC1F 674

Federal Circuit and Family Court of Australia

(DIVISION 1)

Brennan & Sahli [2022] FedCFamC1F 674

File number(s): BRC 7083 of 2015
Judgment of: BAUMANN J
Date of judgment: 9 September 2022
Catchwords: FAMILY LAW – PARENTING – Where the parents resolved many issues by consent – Dispute as to whether the three children should be vaccinated for the Covid-19 virus – Whether it is in the best interests of the children for a week about arrangement to be ordered – Orders made in accordance with the mother’s proposal for the children to live with her and sped significant and substantial time with the father  
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited:

Cranston & Persson (No 2) [2022] FedCFamC1F 187

Goode & Goode (2006) FLC 93-286

Lamos & Radin (No 2) [2022] FedCFamC2F 167

Division: Division 1 First Instance
Number of paragraphs: 53
Date of hearing: 22 August 2022
Place: Brisbane
The Applicant: Litigant in person
The Respondent: Litigant in person
Counsel for the Independent Children’s Lawyer: Ms M Cullen
Independent Children's Lawyer: Legal Aid Queensland

ORDERS

BRC 7083 of 2015

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

MS BRENNAN

Applicant
AND:

MR SAHLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BAUMANN J

DATE OF ORDER:

9 September 2022

THE COURT ORDERS:

1.That the mother have sole parental responsibility with respect only to the specific issue of the children, X born in 2009, Y. born in 2010 and Z born in 2012 (“the children”) receiving any vaccinations against the Covid-19 virus.

2.That in addition to the time the children are to spend with the father pursuant to the final parenting Orders dated 26 May 2022, the children shall spend time with the father as agreed between the parents, but failing agreement each alternate weekend from after school Thursday to before school Monday (or Tuesday if the Monday is a public holiday or pupil free day), with the father to collect the children from school or after school care and return the children to the same venue at the conclusion of time.

3.That the Independent Children’s Lawyer be discharged.

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 the pseudonym Brennan & Sahli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

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Brennan & Sahli [2022] FedCFamC1F 674
Case
[2022] FedCFamC1F 674
Decision Date

CaseChat Overview and Summary

In the matter of Brennan & Sahli, the court was called upon to determine parenting arrangements for the children of the parties. The dispute centred around whether the existing arrangement should be altered to one of equal shared time, as sought by the father, or if the current arrangement, which favoured the mother, should be maintained. The court was required to weigh the best interests of the children against the expressed wishes of the parties and the children themselves.

The primary legal issue the court had to decide was whether it was in the best interests of the children to move to an equal time regime. This involved assessing the current arrangement, the developmental needs of the children, the parenting styles of both parents, and the expressed wishes of the children. The court also needed to consider the implications of any change on the children's existing relationships and stability. The court acknowledged the father's contention that equal time was in the children's best interests and his right to seek it, but also the mother's opposition and the children's expressed views.

The court reasoned that, based on the evidence, the children had thrived under the mother's primary care and enjoyed their time with the father. There was no evidence suggesting that the children would not wish to remain in a family unit with their siblings. Although the father contended that equal time was warranted, the court was not convinced that it was in the best interests of the children to change the existing arrangement at that stage. The court considered that the children were doing well and that the risk of a change causing harm outweighed the potential benefits of equal time. The court also noted the agreed arrangements between the mother and the Independent Children's Lawyer, which indicated that the children were spending significant time with their father. The court concluded that it would be beneficial for changeovers to occur on a Monday, rather than Sunday, to ensure the father had a real obligation to prepare the children for school.

The court ordered that the parties share equal shared parental responsibility and that the children's time be divided in a manner that would allow for substantial and significant time with their father, with changeovers occurring on a Monday. This decision was made in the best interests of the children, taking into account their current well-being and the potential risks of a change in their living arrangements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are no family violence orders or evidence of family violence in this case which need to be assessed as required by S 60CC(3)(j) and (k). The Court is required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, if the Court was not to order equal time, I believe the father will not persist in his desire for equal time. Certainly, he would have to overcome the requirements of Rice & Asplund (1979) FLC 90-725 with any future application. However, his wish and view that he is “entitled” to equal time and that it is in the best interests of the children, is unlikely to be dented by the proceedings that have taken place in Court on this occasion.Conclusion as to Time By reason of the orders made, the parties share equal shared parental responsibility. As a result, the Court is required to consider whether equal time is in the best interests of the children and reasonably practicable. The mother opposes equal time and the father contends for equal time. Based on the findings made in these Reasons, to date, I am not satisfied that it is in the best interests of the children to move to an equal time regime, at this stage. I say that both individually and collectively for the children, and, whilst I note the express wishes of X, there is nothing to suggest that she does not wish to be other than in a family unit with her brothers. I can accept that, developmentally, there may be occasions where she may be, in the future, treated slightly differently than the boys. Neither of the boys gave any indication that they would support an equal time arrangement. However, my view would be that the children would probably cope with it. Having circumstances where all the evidence is – and the father accepts – that the children have thrived in the mother’s primary care and that they are enjoying time with the father, at this stage, I am not satisfied it is in the best interests of the children to move to an equal time regime. Whilst there are some issues of communication between the parties, I would not regard that as being an impediment to an equal time regime. There are slightly different parenting styles, but they do not erupt in a way which are creating issues with the children, at this stage. Frankly, as the current evidence suggests, the children are doing well, have intact relation with both parents and the risk of a change causing an effect on those real benefits now is a further matter which I have taken into consideration, in not ordering equal time. Although I am not bound by the consent between the mother and the Independent Children’s Lawyer, the arrangements which they have agreed to, and which, consistent with the orders made earlier by the Court, combine to make it clear that the children are spending substantial and significant time with their father. I believe it would be beneficial for the children for changeovers to occur on a Monday, rather than a Sunday. I made that observation as a preliminary view and it was adopted by the mother and the Independent Children’s Lawyer. That will at least give the father a real obligation to prepare the children for school on a Monday, including ensuring that they have their homework completed; preparing their lunches and the like, and ensuring their school uniforms, if required, are ready to be worn. To date, those duties have all been undertaken primarily by the mother, in her home. I have no concern that the father, in his household, cannot achieve those tasks effectively.

Ratio Decidendi

Legal Principle Established

According to X’s comments to Ms K, X manages her relationship with Mr L in a way which limits the potential conflict with him. Neither the mother nor the Independent Children’s Lawyer contended that Mr L presents as a risk to the children, and I do not find that he does. I understand Mr L, who did not give evidence in this case but had been interviewed by Ms J, is an educator and I have no evidence to suggest that the relationship between Mr L and the father is other than loving and supportive.Additional Considerations The Court is required to consider any views expressed by the children. In this regard, both parents have, to some degree, discussed their proposal with the children, although it seems to me that the major issue of relocation to Country C was the primary concern that the children had been to deal with. I would give cautious weight to anything the children say to each parent, as set out in their affidavits, because being aware of the conflict, the children could have a tendency to say to each parent what they think that parent wants to hear. Because Ms J had not seen the children since the interviews for the family report back in January 2021, I put to Ms J aspects of the children’s wishes as contained within the children's wishes report prepared by Ms K (who was not the subject of cross-examination). I did not put to Ms J the conclusions or recommendations of Ms K. It was not appropriate for Ms J to act in some way as a critique of Ms K’s recommendations. Nonetheless, the children’s wishes reports make it clear to me that in respect of the children:X(a)As X expressed initially to Ms J at a time when the father had not relocated to G Region, she regarded it as unfair that the father was not having equal time. She said to Ms J that it was her idea to have equal time. This view is maintained at paragraph 19 of the report of Ms K where X is recorded as saying that she still regards the existing regime as unfair and noting that it was “bias” towards the mother, given she has the majority of time with her and her siblings. She expressed a view that she wished to spend equal time with her parents. However, in the wishes captured by Ms K, Ms K clearly sought further information in respect of how equal time would work in the father’s household and in particular, in relation to her interaction with Mr L;(b)At paragraph 24 of Ms K’s report, the following is noted: Noting her preference to spend equal time with the parents, and this suggesting the above cannot be that bad [being spending time with [Mr L] who she described she disliked], [X] said, ‘I don’t really talk to him. I isolate myself from him’. She explained that is how she will manage living equal time with her father and his partner present. Exploring further her dislike of [Mr L], [X] explained that when she recently had an argument with her father, his partner ‘walked up to me and said if I want attention, you probably shouldn’t start up an argument. I said he shouldn’t behave like my father’.Y(c)Noting the diagnosis of Y and some of his behavioural issues, I am prepared to accept that he is not as mature as X. In respect of his wishes as to the arrangements as they exist and/or could increase, at paragraph 32 Ms K records:[Y] confirmed that he lives with his mother and spends each alternate weekend with his father Thursday to Sunday. Reflecting on the existing regime, [Y] said, ‘it’s pretty good. I like it. I wouldn’t want to change it. I feel it’s okay. I feel we can keep going with that’.Z(d)Although Z presented to Ms K as “somewhat nervous”, he was engaging and cooperative through his interview. He was positive about both his parents. When he was sked specifically about whether he wished to remain where he is, Z noted “kind of”. This would seem to me to be mostly related to the then pending application of the mother to relocate. He was clearly concerned that if they relocated he would not see his father and he would be sad about not seeing him. In my view, the comments of Z throughout the interview with Ms K give no hint that he would seek any change to the current broader arrangements in place. Considering that this child has been in the primary care of the mother from the age of two, that is hardly surprising, although he does enjoy the time with his father.