Bruce & Bruce

Case [2023] FedCFamC1F 936

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bruce & Bruce [2023] FedCFamC1F 936

File number: NCC 4120 of 2020
Judgment of: AUSTIN J
Date of judgment: 3 November 2023
Catchwords: FAMILY LAW – PARENTING – Best interests – Where both parties seek residence of the two children – Where the father seeks sole parental responsibility – Where the mother seeks shared parental responsibility save as to medical and educational decisions reserved to her – Where the children currently live with the mother – Where the children have not spent time with the father since January 2023 – Where the mother’s allegations of abuse and family violence by the father were unsubstantiated – Where the father and Independent Children’s Lawyer allege the children are susceptible to emotional damage caused by the mother’s conduct – Where the single expert reported the elder child is at risk of developing a psychological disorder if she remains living with the mother – Where the single expert reported the younger child’s relationship with the father is likely to be entirely severed if he remains living with the mother – Where the single expert evidence is accepted – Where the Court is satisfied the children have sustained serious psychological harm by reason of their subjection and exposure to the mother’s emotionally abusive behaviour – Where the presumption of equal shared parental responsibility is rebutted – Ordered the father have sole parental responsibility and the children live with him – Mother restrained from any form of contact with the children for two months – Ordered the children spend defined time with the mother thereafter.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Cases cited:

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

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Division: Division 1 First Instance
Number of paragraphs: 145
Date of hearing: 16, 17, 18 & 19 October 2023
Place: Newcastle
The Applicant: Litigant in person
Counsel for the Respondent: Ms Smith
Solicitor for the Respondent: Dawson & Gardiner Solicitors
Counsel for the Independent Children's Lawyer: Mr Alexander
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

NCC 4120 of 2020

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

MS BRUCE

Applicant
AND:

MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.All former orders concerning the following children are discharged:

(a)X, born 2010.

(b)Y, born 2013.

2.The father shall have sole parental responsibility for the children.

3.The children shall live with the father.

4.For two months from the date of these orders, for the personal protection of the children, the mother is restrained from:

(a)initiating conversation with the children and from causing a third party to engage in conversation with the children;

(b)communicating with the children via telephone, text…

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Bruce & Bruce [2023] FedCFamC1F 936
Case
[2023] FedCFamC1F 936
Decision Date

CaseChat Overview and Summary

In the case of Bruce & Bruce, the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the best interests of two children, X and Y, born in 2010 and 2013 respectively. The central dispute arose from the parents' differing views on the children's residence and parental responsibility. The mother sought to retain the children primarily with her, while the father sought sole parental responsibility. The court had to decide on the allocation of parental responsibility, the residential arrangements for the children, and the contact between the children and the mother. The legal issues included whether the presumption of equal shared parental responsibility should apply, the impact of the mother's conduct on the children, and the advisability of imposing restrictions on the mother's contact with the children.

The court found that the presumption of equal shared parental responsibility was rebutted due to the parents' inability to cooperate and the mother's emotionally abusive behaviour. The court accepted the single expert psychologist's evidence that the children had sustained serious psychological harm from the mother's conduct. Consequently, the court decided that the father should have sole parental responsibility and that the children should live with him. The court also imposed a two-month embargo on the mother's contact with the children to allow them to adjust to the new living arrangements. Following the embargo period, the court ordered that the children spend supervised time with the mother, gradually increasing the frequency and duration of these visits over time.

The court's decision was influenced by the need to protect the children from further emotional harm and to facilitate their relationships with both parents. The orders reflected the expert's recommendations and the submissions of the father and the Independent Children's Lawyer. The court acknowledged the potential for further litigation but considered the benefits of the proposed orders for the children's well-being outweighed this risk. The final orders included detailed provisions for the children's contact with the mother, restrictions on the mother's communication with the children, and measures to ensure the children's safety and well-being. The court also addressed various practical aspects of the children's care, including school arrangements, medical emergencies, and the exchange of school reports. The Independent Children's Lawyer was discharged, and any other outstanding applications were dismissed.

Orders

Orders of the court

NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BRUCE

Applicant

AND:

MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1. All former orders concerning the following children are discharged:

(a) X, born 2010.

(b) Y, born 2013.

2. The father shall have sole parental responsibility for the children.

3. The children shall live with the father.

4. For two months from the date of these orders, for the personal protection of the children, the mother is restrained from:

(a) initiating conversation with the children and from causing a third party to engage in conversation with the children;

(b) communicating with the children via telephone, text message, email, or internet social media; and

(c) attending at, entering onto, or loitering upon the grounds of the school attended by the children, save for the limited purpose of delivering or collecting her child (B, born 2016) to and from the school.

5. Upon expiration of Order 4, the parties shall take all reasonable steps to ensure the children spend time with the mother as follows:

(a) for an initial period of three months, for not more than two hours once per fortnight under supervision at a contact centre.

(b) for a further period of three months, for not more than two hours once per week under supervision at a contact centre.

(c) for a further period of three months, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday, commencing on the second weekend after the expiration of Order 5(b).

(d) thereafter:

(i) each alternate weekend during school terms from the conclusion of school (or alternatively 3.30 pm) on Friday until the commencement of school (or alternatively 9.00 am) on Monday, commencing on the second weekend after the expiration of Order 5(c);

(ii) for two contiguous weeks in the Summer school holidays, concluding at 12.00 noon on the last Saturday before school resumes in the new academic year, commencing in January 2025.

(iii) for the first week of the Autumn, Winter and Spring school holidays from 2025 onwards, commencing at 3.30 pm on the last day of school term and concluding at 5.00 pm on the second Saturday thereafter.

6. Orders 5(c) and 5(d) are suspended:

(a) between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

(b) from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

7. For the purpose of implementing Orders 5(a) and 5(b):

(a) the supervisor of the time spent by the children with the mother shall be the staff at “[C Family Services]”, “[D Family Services]”, or “[E Family Services]”, in that order of preference (“the supervisor”);

(b) the parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

(c) the venue at which the time is to be spent by the children with the mother shall be designated by the supervisor;

(d) the times of the supervised visits shall be designated by the supervisor;

(e) the parties shall bear the cost of the supervision in equal shares;

(f) the father shall ensure the children’s delivery to and collection from the venue at the beginning and end of the supervised visits;

(g) the parties shall comply with all reasonable directions of the supervisor; and

(h) the parties may furnish a sealed copy of these orders to the supervisor.

8. For the purpose of implementing Orders 5(c) and 5(d), the parties shall ensure the children’s exchange at:

(a) school, whenever the children’s time with the mother is to commence following the conclusion of school or end before the commencement of school during school term; or

(b) otherwise at the McDonalds Restaurant at Suburb F, NSW.

9. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

10. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party.

12. The father shall authorise and request the principal of any school attended by the children to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

14. The father is authorised to furnish a copy of these orders to the principal of the school attended by the children.

15. The father is authorised to furnish to any doctor or therapist administering treatment or therapy to the children copies of:

(a) these orders;

(b) the reasons for judgment; and

(c) the single expert reports dated 19 December 2022 and 31 July 2023.

16. The mother shall forthwith leave and is restrained from returning to and entering upon the premises of the City G registry of the federal courts complex for the remainder of Friday 3 November 2023.

17. The father shall forthwith ensure the children’s delivery into the custody of the Senior Court Child Expert of the Court Children’s Service at the City G registry of the Court to have explained to them by a Court Child Expert the effect of these orders and, if deemed appropriate by the Court Child Expert, the reasons for such orders.

18. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

19. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

20. Save as to costs, any and all other outstanding applications are dismissed.

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.

Background

Background to the litigation

That outcome is consistent with the proposals of the father and the Independent Children’s Lawyer (“the ICL”) and also with the expert opinion evidence given by the single expert psychologist (“the single expert”).BACKGROUND The parties began cohabitation in 2009 and married in 2010. There was controversy over when the parties finally separated which need not be resolved, as it is certain they finally ceased living in the same household by September 2013.[1] The mother said in cross-examination that the marital separation occurred earlier on or about 26 January 2013.[1] Mother’s affidavit at [105] The children were born in 2010 and 2012 and are now nearly 13 and 11 years respectively. They have lived primarily with the mother since the parties’ separation. Following their physical separation in September 2013, the parties were commendably able to negotiate the time the children would spend with the father without external interference. They negotiated a parenting plan in 2015, providing for the children to spend three nights per fortnight with the father, but it was implemented loosely and generously. From September 2015, the children spent about four and sometimes five nights per fortnight with the father. By 2019, the children began living with the parties in a shared-care arrangement, which was tantamount to an equal time regime.[2] In early 2020, the children even stayed with the father for several consecutive weeks while the mother was ill.[3][2] First Single Expert Report at [17]–[18][3] First Family Report at [19]; Father’s affidavit at [128] The mother commenced these proceedings in November 2020, at which time she sought orders for the children to live primarily with her, but allocating the parties equal shared parental responsibility for the children, and requiring them to spend substantial and significant time with the father on alternate weekends, during school holidays and on other special occasions. However, the spirit of compromise the parties had ably demonstrated for many years between 2013 and 2020 began to unravel in 2021. Puzzlingly, the evidence did not convincingly explain why that happened. The father told the single expert he could discern “no reason for the escalation” of tension between he and the mother,[4] though he suspects she reacted adversely to sentiments expressed by the children about wanting to spend more time with him.[5][4] First Single Expert Report at [176][5] First Single Expert Report at [177], [180], [414] Regardless of the reason, in May 2021, to address the parties’ developing antipathy, the ICL was appointed, they were ordered to complete a post-separation parenting program, and they were restrained from denigrating one another. In August 2021, the mother advised the father by email that she was withholding the children from him, saying:[6]After today’s court session and there being no formal interim orders in place, which were confirmed by the registrar today, due to the present and increasing issues of concern for the kids safety and well-being I will not be sending the kids back to your home.[The children’s] mental health, exhibited concerning behaviours and their own voiced concerns and distress is at the foremost of my priorities and therefore I will be keeping them in my care full time until interim orders can be discussed and agreed upon through our lawyers. … [6] Father’s affidavit at Annexure R

Evidence

Evidence Before The Court

Broadly speaking, the mutual proposals of the father and the ICL coincided with the recommendations of the single expert.EVIDENCE The mother was required to file the affidavit evidence upon which she relied by 15 September 2023,[23] but did not do so. She sought and was granted leave to rely upon her affidavit sworn or affirmed on 20 September 2023,[24] the annexures thereto,[25] and the maternal grandmother’s affidavit sworn or affirmed on 20 September 2023.[26] Although served late, the father and the ICL had the affidavits within sufficient time to be well prepared to deal with the evidence of the mother and maternal grandmother, so they consented to the mother’s reliance upon the two affidavits.[23] Orders 4 and 5 and Notation A made on 7/8/23[24] Exhibit M1[25] Exhibit M2[26] Exhibit M3 The mother did not renew any application to call evidence from another witness she originally nominated at the procedural hearing, which permission was initially refused on the submissions made at the time.[27][27] Notation A made on 7/8/23 The father relied upon two affidavits filed on 15 September 2023 – one by him and the other by his wife. As these affidavits (and the annexures thereto) were filed, they were not marked as exhibits. The parties and the ICL also relied upon:(a)the Child Inclusive Conference Memorandum dated 3 May 2021;[28](b)the single expert’s first report dated 19 December 2022;[29] and(c)the single expert’s second report dated 31 July 2023.[30][28] Exhibit ICL1[29] Exhibit ICL2[30] Exhibit ICL3 Multiple other documents were tendered by the parties and the ICL as exhibits during the trial.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC) and also in respect of decisions which do not relate to such significant issues (s 65DAE). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a)

Decision

Reasons for decision

The chance of further litigation resulting from making the orders proposed by the father and the ICL, as are recommended by the single expert, might be more pronounced, but that is a chance worth taking in view of the benefits such orders will likely bestow upon the children.CONCLUSIONS The presumption of equal shared parental responsibility being allocated to the parties is rebutted by the evidence (s 61DA(4)). Their antipathy would preclude them from working cooperatively to solve problems for the children in the manner envisaged by the Act as being necessary (s 65DAC). The persistent failure to implement the existing interim orders enabling the children to spend supervised time with the father is one obvious example. The father’s attempts to communicate with the mother have been met with accusations of harassment.[151] The residential parent should have sole parental responsibility.[151] Second Single Expert Report at [47] The children should live with the father. The features of the evidence which dictate that outcome are these, in summary:(a)the only way in which the children can enjoy meaningful relationships with both parents is to live with the father. They cannot do so if they continue living with the mother.(b)the father does not pose any risk of physical or emotional harm to the children. He can meet all of their physical, emotional and intellectual needs.(c)the mother does pose a risk of emotional harm to the children. She cannot adequately meet their emotional needs.(d)the children’s relationships with the paternal half-siblings are no less important than their relationships with the maternal half-sibling and the maternal grandmother. The single expert recommended the reversal of the children’s residence, supposing the mother’s allegations of abuse and family violence were unsubstantiated, which is the factual finding now made. She said in cross-examination the change of residence is designed to alleviate the stress felt by the children. The children will be initially upset by and apprehensive about the residential transition. While it is possible they may not recover their emotional equilibrium, they most probably will. The father and his wife have contemplated how they will manage the change. They will avoid any other upheavals in the children’s lives by maintaining their school enrolment, maintaining their friendship groups, and maintaining their existing therapeutic medical relationships. The prospects of success of the residential transition will be enhanced if the mother’s influence is removed for a relatively short period of time. The single expert recommended an embargo for the younger child in her second report,[152] but expanded that opinion evidence during her cross-examination, saying the embargo should best apply to both children uniformly and be for a period of two months, which advice was embraced by both the father and the ICL.[152] Second Single Expert Report at [184] Enforcement of the embargo period is fraught with practical difficulty because the father intends to keep the children at their current school, which is the same school attended by their maternal half-sibling. Because of the half-sibling’s young age, the mother will likely be regularly involved in his delivery to and collection from school, so there is every chance the children will see the mother and want to converse with her. I reject the onerous form of injunction proposed by the father,[153] which is impractical. Rather, an injunction is made confining the mother’s attendance at the school to short periods and preluding her from initiating contact with the children. If they run up to her at the school while she is there to deliver or collect their half-sibling, she can hardly be expected to ignore them or chase them away. [153] Exhibit F6 (Order 19)

Ratio Decidendi

Legal Principle Established

The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) The single expert contended the children appear attached to the mother, though the security of their attachments and the existence of appropriate boundaries within their filial relationships was not established to the single expert’s satisfaction at the time.[31] The children will not derive a full measure of benefit from their relationships with the mother if their attachments with her are not secure or if they tend to be treated by her as being more mature than they actually are. There is some evidence to suggest that is so. The single expert agreed with the ICL’s proposition that the elder child was displaying signs of “parentification”, the responsibility for which lay with the mother, who was not observing appropriate boundaries in their filial relationship.[31] First Single Expert Report at [475] The father accepts the children do derive benefit from their relationships with the mother, but contends they are unable to derive benefit from their relationships with both parents whilst ever they live with the mother and she retains control of the situation. Section 60CC(2)(a) is concerned with the benefit the children are likely to derive by maintaining their meaningful relationships with both parents, not just one of them. On the evidence, the children had perfectly happy relationships with the father until 2021, to which point they had been living with him for equal time. However, the situation has changed since the mother unilaterally withheld the children from the father in August 2021. The elder child is now described as being “conflicted around the topic of her relationship with [the] father” and suffering anxiety due to “significant loyalty binds”. Nonetheless, the single expert concluded the elder child still finds “benefits in her relationship” with him.[32] The supervision report from one of the most recent supervised visits in December 2022 shows the elder child was effusive about seeing the father.[33][32] First Single Expert Report at [422], [458], [477][33] Exhibit ICL4