Campbell and Bouchard
[2014] FCCA 2293
•10 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMPBELL & BOUCHARD | [2014] FCCA 2293 |
| Catchwords: FAMILY LAW – Children – parenting orders – consent orders – application for consent orders – where applicant and respondent agree but Independent Children’s Lawyer does not consent – whether parenting orders should be made – whether proposed orders are in the child’s best interests – parental responsibility – sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L |
| Applicant: | MS CAMPBELL |
| Respondent: | MR BOUCHARD |
| File Number: | SYC 4804 of 2009 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 30 September 2014 |
| Date of Last Submission: | 30 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2014 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms Shearman |
| Solicitors for the Respondent: | Meehans Solicitors |
| Independent Children's Lawyer: | Ms Goodman |
| Solicitors for the Independent Children's Lawyer: | Legal Aid New South Wales |
ORDERS
All previous Orders are discharged.
The Applicant mother is to have sole parental responsibility for the child [X] born [omitted] 2004.
The child [X] is to live with the mother.
The child [X] is to spend time with and communicate with the father at times as agreed between the mother and the father.
THE COURT NOTES that within 28 days from the date of these Orders, the father will be meeting with the Independent Children’s Lawyer and the child [X] to enable the father to speak to [X] as to the Orders that are being made and that the Independent Children’s Lawyer will (separate to the father) advise [X] of the effect of the Orders being made.
Subject to the matters referred to in (5) above the Independent Children’s Lawyer will be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Campbell & Bouchard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4804 of 2009
| MS CAMPBELL |
Applicant
And
| MR BOUCHARD |
Respondent
REASONS FOR JUDGMENT
Application
This is an unusual application, in that the Applicant mother and the Respondent father seek to have orders made by consent finalising the matter but the Independent Children’s Lawyer does not consent. The proposed orders would see the father in effect withdrawing from the proceedings and not pursuing the orders sought in his Response. The effect of this would be that the mother would have sole parental responsibility for the child, who would continue to live with her, and the child would spend time and communicate with the father at times agreed between the parents.
The Independent Children’s Lawyer told the Court that she neither consented to nor opposed the orders sought, saying that she would prefer the father to file and serve an affidavit outlining his situation so that the Court would be in a better position to make the orders sought.
In the circumstances, it is clear that the Court cannot regard the proposed orders as Consent Orders, as one of the parties does not consent. What the Court must do is decide whether the proposed orders are in the child’s best interests.
Background
The mother and father commenced a relationship in about 2002 and separated on a final basis on or about 15 November 2005. There is one child of the relationship, [X], who was born [omitted] 2004. He will attain the age of ten years later this month. [X] lives with his mother.
The father re-partnered and there are two children from that relationship. The father’s new partner also has two other children.
There were previous proceedings between the parties which were finalised by Consent Orders made on 26 June 2010. Those Orders provided, in summary, that:
a)The child [X] would live with his mother;
b)The parties would have equal shared parental responsibility for making decisions about the child’s long term care, welfare and development;
c)The parties would have sole responsibility for making decisions about the child’s day to day care, welfare and development when the child was living with that party;
d)The child would spend time with the father as agreed but in default of agreement:
i)During the school term, in the first week of each fortnight, from after school on Thursday until the commencement of school on Friday; and
ii)In the second week of the fortnight, from after school on Thursday until the commencement of school on Monday morning (or Tuesday in the event of a public holiday);
e)For half of the school holidays;
f)From Good Friday to Easter Monday in even numbered years commencing in 2012;
g)By telephone liberally but at least once a day;
h)The parties would spend time with the child on his birthday and their own birthdays;
i)The child would spend Father’s Day with the Father and Mother’s Day with the mother;
j)The parties were permitted to take the child overseas to visit family during the school holidays on 6 months’ notice to the other party; and
k)Other ancillary orders.
Procedural History
The mother filed an Application for parenting orders on 21 October 2013, seeking final orders that the parties should have equal shared parental responsibility for the child, that the child should live with her and spend time with the father in a manner not dissimilar to the arrangements set out in the earlier consent Orders.
In the Application, the mother sought interim orders similar to the final orders sought but with the addition of an order that the parties should attend a court-ordered mediation.
The Application was supported by an affidavit of the mother, in which she deposed that in about late 2010 the father had sent emails to her saying that the child was violent and aggressive towards the other children and had been exhibiting disruptive behaviour at school.
The mother’s affidavit stated that the child had complained to her that when he spent time with his father the father used physical violence towards him. She complained to the Police and to the then Department of Community Services but no action was taken other than the Police saying that they had telephoned the father and had warned him about his actions.
The mother further deposed that the father later emailed her saying that the child had been displaying sexually inappropriate behaviour towards other children in the father’s household. The father made further complaints about the child’s behaviour and he had taken the child to see a psychologist, who had made a report to the Department of Community Services.
The mother made inquiries from a DOCS caseworker about the matter but no further action was taken.
The mother spoke to the child psychologist who had seen the child at the father’s behest and was told that the father had reported to her his concerns about the child’s violent and sexually inappropriate behaviour.
The child moved to a new primary school in 2011 and the school advised the mother that the child’s behaviour at school was disruptive. The parties agreed that the child should have a behavioural assessment which indicated that the child might have ADD[1] and ODD[2].
[1] Presumably Attention Deficit Disorder
[2] Presumably Oppositional Defiant Disorder
The child’s behaviour settled but throughout 2012 and 2013 he continued to show opposition to spending time with his father. He would come home sick from school and say that his being ill meant that he did not have to go to his father’s house. The child continued to complain to her that the father used physical means to chastise him and he would claim that he was scared of going to stay at his father’s home.
The mother deposed that from August 2013 the child started having anxiety attacks. The child continued to display resistance to spending time with his father and continued to report that his father was violent towards him.
The father filed a Response on 13 November 2013 seeking interim orders restraining the parties from denigrating each other or discussing the proceedings with each other and varying the earlier Orders relating to telephone calls.
The Response also sought final orders that the parties should attend a family therapist.
The father’s Response was supported by an affidavit from the father who stated that the child was displaying violent and aggressive behaviour in his home and at school. He stated that the school had contacted him about the child’s extreme behaviour. He stated that the mother constantly denied that there were any problems with the child’s behaviour.
The mother’s Application was returnable on 18 November 2013, on which date the parties were directed to attend a Child Dispute Conference with a Family Consultant.
The Child Dispute Conference took place on 15 January 2014. The Family Consultant who saw the parties had previously seen them prior to the earlier Consent Orders. The Family Consultant reported the mother’s allegations that the father had been violent towards the child and the father’s denials of these allegations. The Family Consultant recommended the appointment of an Independent Children’s Lawyer and that a Court Expert Report should be prepared by a child psychiatrist.
On 4 February 2014 the Court ordered that the child’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).
On 25 March a Court Expert Report was ordered. The Report was prepared by Ms O, a Clinical Psychologist and completed on 20 June 2014. The Report was released to the parties on 3 July 2014.
The Court Expert Report
The Court Expert Report is a thorough and detailed work, and arises from interviews with the mother, the father, his current wife and the child. Ms O recommended that:
1. If the Honourable Court find that the level of conflict is such that shared parental responsibility is not feasible, then
Ms Campbell should have sole parental responsibility for [X];
2. [X] should live primarily with Ms Campbell;
3. [X] should spend alternate weekends (from Thursday after school to Monday at school) with Mr Bouchard, as well as half of all school holidays;
4. All adults should refrain from using physical means to discipline [X] and should not denigrate him;
5. While [X] does not currently need psychological intervention, [X] should consult with another psychologist (such as Ms W) in the future, if the need arises. Neither parent should be seen by any new psychologist but rather, [X] should be seen alone.
6. Mr Bouchard should not discuss the current interviews with [X];
7. Mr Bouchard should complete Bringing up Great Kids, which applies mindfulness to parenting…[3]
[3] Report A. O 20.6.2014 pp. 35-36 at paragraph [165]
On 28 July 2014 an Order was made that the parties were to attend a Litigation Intervention Conference.
The matter came back to Court on 30 September, when the parties tendered the Minutes of Consent Orders signed by the Applicant and the Respondent, but not the Independent Children’s Lawyer.
The Orders Sought
The Minutes of Consent Orders state:
The parties consent to the following orders:
1) That all previous Orders be and hereby are discharged.
2) That the mother have sole parental responsibility in relation to [X] date of birth [omitted] 2004 (“the child”).
3. That the child live with the mother.
4. That the child spend time and communicate with the father at times as agreed between the mother and the father.
5. The Court notes within 28 days from the date of these Orders, the father will be meeting with the Independent Children’s Lawyer and [X] to enable the father to speak to [X] as to the Orders that are being made and that the independent children’s lawyer will (separate to the father) advise [X] of the effect of the Orders being made.
The Minutes of Order are signed by the mother, who is no longer represented, and the father. The father’s signature is witnessed by Ms Shearman of Counsel, who appeared for and with the father.
Submissions
As mentioned earlier, Ms Goodman, the Independent Children’s Lawyer, told the Court that she could not consent to the Orders as sought, although she would not oppose them. The father has “backed off” from the litigation. If he were to provide an affidavit outlining the situation the Court would be in a better position to make the orders.
The mother told the Court that she had made complaints about what she saw as the father’s excessive discipline. He had sent her emails outlining his fears for his wife and current family over the child’s aggressive behaviour.
Ms Shearman of Counsel told the Court that her client consented to the proposed orders. He did not agree to take part in a further mediation nor did he wish to provide a further affidavit.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:
a)Section 60B;
b)Section 60CA;
c)Section 60CC;
d)Section 61DA; and
e)Section 65DAA.
Section 60B of the Family Law Act 1975
The Court must have regard to the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are set out in subsection 60B(1) and include:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
These two objects are reflected in subsection 60CC(2) of the Act.
The principles underlying the objects are set out in subsection 60B(2) of the Act. These principles include the right of children to know and be cared for by both their parents and the right of children to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development.
Section 60CA of the Family Law Act 1975
Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests.
Section 60CC of the Family Law Act 1975
In determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). The primary considerations are set out in s.60CC(2) of the Act. They 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.
The Court is required by s.60CC(2A) to give greater weight to the consideration set out in paragraph (b).
The additional considerations are set out in s.60CC(3). They are contained in paragraphs (a) to (m) of the subsection, although they will not necessarily all be relevant.
Section 61DA of the Family Law Act 1975
Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse, neglect or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.
Section 65DAA of the Family Law Act 1975
Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court must consider whether the child should spend equal time with each parent or substantial and significant with each parent.
The parties are not proposing that the child should spend either equal time with one parent or substantial or significant time with the father. They are also not proposing that the parties should have equal shared parental responsibility for the child.
Conclusions
The parties propose that the mother should have sole parental responsibility for the child. They do not communicate well and remain as far apart in their parenting relationship as they have ever been, on the evidence available to the Court. How, then, can it be feasible for them to retain equal shared parental responsibility for [X]?
The affidavit evidence shows each parent making decisions about the child’s behaviour and whether or not he should see a counsellor or a psychologist without consulting the other. Their degree of mutual trust is low.
The parties propose that [X] will continue to live with his mother but will no longer spend regular time with his father. In the circumstances, it does not appear to be in the child’s best interests for his parents to have equal shared parental responsibility for him. In light of the recommendations of Ms O, I consider that an order should be made that the mother have sole parental responsibility for [X].
The proposed orders will not bring about a situation where the father will have a meaningful involvement in [X]’s life, although the mother’s evidence, untested though it is, suggests that the child is scared of the father and resistant to spending time with him.
There are allegations of family violence which are strongly denied, and these allegations, too, remain untested. It is not possible to make a finding of fact about whether or not the father has used inappropriate discipline on the child.
What appears clear is that the conflict between the parents has not dissipated over the years, far from it, and there is no likelihood that they will agree on any matters regarding [X] in the near future. The father appears to be tired of the struggle, and the mother probably is, too.
The fact is that the mother and father have agreed to disagree, and the father is no longer prepared to persevere with the struggle to deal with [X]’s behaviour, which he finds disruptive and aggressive, even if the mother does not. The father has another family, and he obviously feels that he needs to consider their interests.
The Independent Children’s Lawyer does not consent to the proposed orders, and it is easy to see why she would not be happy to see the situation for [X] remain unresolved. However, both [X]’s mother and father appear to accept that they are involved in an unwinnable conflict and they have decided to walk away from that conflict.
The decision of the mother and father is no doubt intended to give them both some peace, and it would appear likely that if there is a cessation of the litigation between the parties, that may give some peace to [X] as well. If that is the case, that would certainly be in the child’s best interests.
As I mentioned earlier, the proposed orders cannot be consent orders, as the Independent Children’s Lawyer does not consent. However, on the basis that these proposed orders are likely to be in the child’s best interests, I propose to make the Orders that the mother and father wish the Court to make.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 10 October 2014
Key Legal Topics
Areas of Law
-
Family Law
0
2