Canfield & Taimana
[2023] FedCFamC1F 404
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Canfield & Taimana [2023] FedCFamC1F 404
File number(s): NCC 467 of 2022 Judgment of: SMITH J Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – Parenting – high conflict - international travel – bond and undertakings – no change to time with or breathalyser orders – injunction against using a different surname. Legislation: Family Law Act1975 (Cth) Part VII, Div 5, ss 60CA, 60CC, 64B, 65AA, 65D Cases cited: Banks & Banks [2015] FamCAFC 36
Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Goode & Goode [2006] FamCA 1346
Line & Line (1996) 21 Fam LR 259
Makita & Sprowles (2001) 52 NSLWR 705
Marvel & Marvel [2010] 43 Fam LR 348
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 74 Date of hearing: 12 May 2023 Place: Newcastle Counsel for the Applicant: Mr Tregilgas Solicitor for the Applicant: Burke Mead Lawyers Counsel for the Respondents: Mr Neil SC Solicitor for the Respondents: Swan Lawyers Solicitor for the Independent Children's Lawyer: Ms Lam, agent for Mark MacDiarmid Family Law Specialist ORDERS
NCC 467 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CANFIELD
Applicant
AND: MS TAIMANA
First Respondent
MR TAIMANA
Second Respondent
MS IOANE
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.Confirm the matter is listed on Friday, 8 September 2023 at 9:30 am for mention by Microsoft Teams.
2.Discharge order 4 of the orders date 20 June 2020.
3.That the parties do all acts and things to apply for a passport for the child, X born 2020 within 7 days of the making of these orders, with the Applicant to complete the online passport application and provide a signed copy to the First Respondent who will arrange for the photographs of X to be provided and take the application to an Australian Post Office for the processing of the passport.
4.The first, second and third respondent are to each file in Court an original signed undertaking witnessed by a solicitor in the following form by 4pm on 26 May 2023.
I [name] undertake to the Federal Circuit and Family Court of Australia (Division 1) that, as a condition of being permitted to remove [X] born [2020] from the Commonwealth of Australia, I will ensure that the child is returned to the Commonwealth of Australia by no later than 11 July 2023.
I understand that breaching this undertaking is likely to result in a full time term of imprisonment.Date:
Name:
Signature:Name of witness:
Signature:5.The first, second and third respondents are to provide to the applicant’s solicitor by no later than 14 days prior to departure, (or not later than 4:00pm 13 June 2023) by way of bond the sum of AUD$50,000 as surety for the return of the child to the Commonwealth of Australia by 11 July 2023.
6.The applicant’s solicitor shall return the $50,000 to the respondents’ solicitor within 2 days of confirmation of the return of X to the Commonwealth of Australia.
7.If X does not return to the Commonwealth of Australia by no later than 11 July 2023 the applicant may apply to the Court for orders that the $50,000 be forfeit to the applicant for use in legal proceedings to pursue the return of X to the Commonwealth of Australia and it is anticipated that this order will be made.
8.By 4pm on 26 May 2023 the first, second and third respondents shall provide to the applicant and the ICL a complete itinerary including of flights, and the details of the addresses at which the child will stay and of the contact details of those addresses for the child at all times whilst the child is in the United States of America.
9.On the first, second and third respondents complying with orders 4, 5 and 8 above, order 2 made 8 February 2023 be suspended from 26 June 2023 until 12 July 2023 and the first, second and third respondents shall be entitled to remove X from Australia to the United States of America for the purpose of overseas holidays departing not earlier than 26 June 2023 and returning not after 11 July 2023
10.That on that X shall spend the following time with the Applicant as “make up” time for time missed between 26 June 2023 and 11 July 2023:
(a)Saturday 15 July 2023 from 9am to 5pm (instead of 10-2) to incorporate the time missed on 1 July 2023;
(b)On Saturday 29 July 2023 be from 10am Saturday to 4pm Sunday in lieu of the weekend missed on 8 July 2023; and
(c)On Saturday 12 August 2023 from 9am to 5pm to incorporate the time for Saturday 29 July 2023, where make up time is already occurring.
11.Vary order 4 and 6 of the orders dated 2 May 2022, such that the changeover location shall be the McDonalds on C Street at Suburb E.
12.The first, second and third respondents are prohibited by injunction from referring to the child by any surname other than “Taimana-Canfield”, and in particular from not including the name “Canfield” in the child’s surname including on any document.
AND THE COURT NOTES:
A.The parties are discussing the appointment of a single expert on Country F cultural issues.
B.Given that the four parties now reside in Sydney, the Court may consider the transfer of the matter to the Sydney registry, or in the alternative the hearing of the matter by Justice Smith sitting in the registry at either Sydney or Parramatta
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 Canfield & Taimana has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act1975 (Cth) (‘the Act’) in competing applications for interim parenting orders concerning the child X (‘the child”) which was heard before me today.
The child was born in 2020 and is now just three years of age.
The issues before me today are relatively narrow, and accordingly, I will seek to confine this judgment to that which is necessary to deal with those issues.
The starting point is that there are four adults who are relevantly concerned with the care, welfare or development of the child. Unfortunately, those adults are now in a state of very, very high conflict.
The applicant in the proceedings is Ms Canfield who was born in 1987 and is now, I think, 36 years of age. She holds a position in a government department and until recently lived in Suburb G in the City H region. She is now moving to Suburb D in Sydney. She is a “psychological parent” of the child.
The first respondent is her former partner Ms Taimana, who is also, I think, 36 years of age, and who also works for in a government department. Ms Taimana formerly lived with Ms Canfield in a relationship in the City H region. She is also a “psychological parent” of the child, and also a biological aunt of the child. I will refer to Ms Canfield and Ms Taimana as “the psychological parents” of the child.
The other two adults concerned with the care, welfare or development of the child are the second and third respondents, Ms Taimana’s brother, Mr Taimana, now 30, and his partner Ms Ioane, who I think is also aged 30. These are the child’s biological parents. The biological parents have two other children, Y, born 2013 and now 10, and Z, born 2017 and so now six. The three respondents identify as from Country F and as being involved in the Country F culture.
Prior to the child’s birth, the biological parents agreed to place the child with the psychological parents. A parenting plan was signed prior to the child’s birth.
Significantly, consent orders were made in what is now Division 2 of this Court on 16 June 2020 between all four parties in relation to the child. Those consent orders are set out starting at page 75 of MFI1, the applicant’s Court Book. The orders were signed by all four parties.
Order 1 was that the psychological parents, who were then joint applicants, should have equal shared parental responsibility for the child, order 2 was that the child should live with the psychological parents, and order 3 was that the child should spend time and communicate with the biological parents at the times agreed by and on such conditions stipulated by the psychological parents.
The notations are in my view significant, and set out the circumstances of the Consent arrangements as follows:
A. The child’s biological parents are the Respondent’s, [Mr Taimana] and [Ms Ioane].
B. There are two (2) other children of the Respondent’s relationship, namely:
a. [Y], born […] 2013; and
b. [Z], born […] 2017.
C. The Respondent’s consider their family to be complete.
D. [Mr Taimana] and [Ms Taimana] are siblings.
E. The Applicant’s, [Ms Taimana] and [Ms Canfield], are in a relationship. [Ms Taimana] and [Ms Canfield] have previously attempted IVF to start their own family.
F. The [Taimana] family are [from Country F].
G. The parties wish to enter into a cultural arrangement whereby the child is “given” to the Applicant’s. All parties consider this type or arrangement to be common in [Country F] culture.
H. It is the parties’ intention that the Applicant’s raise the child as their own and they will be regarded as the child’s parents.
I. It is the parties’ intention that the Respondents remain in the child’s life as Uncle and Aunt figures respectively.
J. It is the parties intention that the Respondent’s children [Y] and [Z] remain in the child’s life as cousins.
Now, ultimately the case will need to address the issues the respondents raise around their Country F heritage, addressed by the single expert, but these notations make it clear that at the time, the biological parents understood that the psychological parents were in a relationship, that they had been unable to have their own child having previously attempted IVF, and that all of the parties wanted to enter into a cultural arrangement where the child was given to the psychological parents, and all of the parties considered this arrangement to be common in Country F culture. It was agreed that the psychological parents would raise the child as their own and be regarded as the child’s parents. As I say, these were formal orders agreed to by all four parties and entered in the Court.
The child then lived with the psychological parents from birth in 2020 until the psychological parents separated in November 2021. There is a lot of evidence about the circumstances of the separation, but I do not consider that relevant to the matters before me today.
From about November 2021, at separation, until about February 2022, the child lived in a form of equal shared care arrangement between the psychological parents, with those parties both living near Suburb G.
In early 2022, Ms Taimana retained the child and eventually moved to live with the biological parents in Sydney’s western suburbs.
As a consequence, on 23 February 2023, Ms Canfield commenced these proceedings. An ICL was appointed soon thereafter.
The matter came before a senior judicial registrar of this Court for a defended interim hearing on 19 April 2022, and on 2 May 2022, there were interim orders made which are still in force, and those orders were made after a contested hearing. Those orders suspended orders 2 and 3 of the consent orders, which is to say it suspended the orders that the child live with the psychological parents and communicate and spend time with the biological parents as seen fit by the psychological parents, but did not suspend order 1, so the psychological parents, that is to say the applicant Ms Canfield and the first respondent, Ms Taimana, still have equal shared parental responsibility for the child.
The orders were that the child would live with the biological parents, and orders were made that the child spend time with Ms Taimana as agreed between the biological parents and her when she was not otherwise spending time with them, and it appears that Ms Taimana spends a lot of time with the biological parents.
For today’s purposes, the significant orders at the moment include orders 4, 5 and 6, which provide orders for time and communication with the Applicant in the following terms:
4. Subject to the following Orders, the child shall spend time with the Applicant as agreed in writing between the parties and failing agreement as follows:
4.1Commencing on Saturday 7 May 2022, on each alternate Saturday from 10am until 2pm with changeovers to occur at the home of the 2nd and 3rd Respondents;
4.2Commencing on Saturday 14 May 2022, on each alternate weekend from 10.00am on Saturday until 4pm on Sunday.
5.The Respondents will facilitate video calls between the child and the Applicant each Tuesday and Thursday between 5.00pm and 5.30pm.
Changeovers
6.Changeovers between the Applicant and the Respondents that are not specified in the above Orders shall occur as agreed between the parties and failing agreement at the […] Service Station, [J Street], [Suburb L], and the parties shall ensure that during changeovers:
6.1The parties will not enter each others’ homes;
6.2Each party will behave in a civil and courteous manner to the other parties and any other person who may be present;
6.3Each party will conduct themselves in a child focussed manner;
6.4Each party will limit their conversation to matters that specifically pertain to immediate matters of the child passing from one party’s care to the other;
6.5The parties will not discuss issues of any controversy between them.
The interim orders specified the times the child would spend with Ms Canfield and I understand the time commenced.
I am told that there have been issues with the video calls in order 5, but that appears to be a matter in dispute.
Order 6 dealing with changeovers was based upon the parties living a considerable distance away in terms of travel distance and time. One of the issues raised is that now Ms Canfield is moving a short distance from the biological parents’ home, whether that is a significant change which would entitle and/or lead the Court to vary the time-with orders.
I will note that orders 7 to 10 of the 2 May 2022 orders required Ms Canfield to obtain at her own cost a mobile personal breathalyser and use that one hour prior to spending time with the child and to forward the tests to the other party and the ICL, and ordered at 10 that in the event she produced a breathalyser test prior to or during the course of her spending time with the child which had a reading of more than 0.05 per cent, the time would be suspended for that day.
There were also orders for hair follicle testing for the biological parents, which does not require consideration here. There were also appropriate general orders of the usual kind about the parties keeping each other advised of residential and email and telephone numbers, about communication with day care providers and medical practitioners, about keeping each other informed of health issues, about the child’s entitlement to communicate with each party by video, with standard constraints on the consumption of alcohol and illicit substances and on physical discipline, and restraints on denigration.
I note there were also orders about the filing of treating reports. A treating report was tendered for the applicant here but not admitted today. I think it makes no difference, as her psychological fitness to care for the child is not an issue in this interim application.
The child’s time with Ms Canfield recommenced following the court orders and, as I understand it, has basically proceeded.
A single expert was appointed, and significantly, that expert made a recommendation which I will come to in a moment. The recommendation flowed from the biological parents’ and Ms Taimana’s comments about their view of Country F culture and cultural practices.
I note in particular what is said at paragraphs 39 and following of the family report, where the single expert report writer, Dr K, who is a clinical psychologist and who does a lot of work in this Court which is why the parties selected her, considered that the biological parents’ views were at [39]:
…deeply steeped in their [Country F] cultural beliefs around inclusive extended family shared parenting.
And at [40] that:
… By this they explained that [X] was given to [Ms Taimana] to raise. However, there was never any uncertainty at the time regarding who [X] belonged to; that being the [Taimana] and [Ioane] family. [Ms Taimana], [Mr Taimana] and [Ms Ioane] indicated that from their perspective, the parenting arrangements were clear; [X] will identify [Ms Taimana] as her mother, and she will be raised by [Ms Taimana] and [Ms Canfield] in the context of their intact relationship, and in collaboration with [Mr Taimana] and [Ms Ioane]. …
(As per the original)
They say that is their view. Whether or not that is so a question of fact for trial, but it is clear that that view significantly influenced the expert when, at 240 of her report at page 115 of MFI3, which is the respondent’s court book, she said [240]:
It is with deep sadness and great empathy for [Ms Canfield] that the following recommendations are made. The report writer would like to acknowledge the pain and suffering that they will cause [Ms Canfield], and emphasise that these recommendations do not seem fair, and are not a product of an impaired capacity to love and care appropriately for [X]. Rather, they are a result of a genuine attempt to hold [X’s] needs central to any consideration. The harm to [X], of exposing her to long-term adult and cultural conflict is the primary cause for concern. Therefore, it is recommended that [X] be placed in the primary care of [Ms Taimana], that [Ms Taimana] is awarded parental responsibility, and that any time [X] has with [Ms Canfield] is determined by [Ms Taimana]. Noting this may result in the cessation of [X’s] relationship with [Ms Canfield].
As counsel for Ms Canfield rightly points out, that expert opinion has not been tested.
Further, the law is very clear, as noted in cases such as Makita & Sprowles (2001) 52 NSLWR 705, see especially Heydon Js decision, that an expert opinion is no more than one piece of evidence before the Court. The expert does not take the role of the judge. Although often highly persuasive, the judge is not required to accept the expert’s opinion, even when it is an unchallenged opinion of a single expert. For example in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 an opinion about a purely scientific matter concerning explosives and their effects was not required to be accepted by the Court.
In the context of family law, where one deals with questions of what is in a child’s best interests, it is always ultimately a question for the judge, usually assisted by the expert’s evidence. This is not a criticism of the expert, nor a statement that her view may not ultimately be accepted, but there is no doubt that when experts make recommendations in family cases they often bring issues of personal as well as professional opinion to bear on matters were more than one result is reasonably possible. Thus, while the Court often places great weight on the opinion of a single expert on parenting, it is always ultimately a decision for the Judge.
So that is a long way of saying that whilst this is one piece of evidence, ultimately, the decision about what is in X’s best interests will be one for a judge, and it is in no way determinative either of this application or of the proceedings nor this interim application.
Nevertheless, having said that, where there is such a single opinion and where I have an obligation to take a cautious approach, even noting that the opinion has not been tested, but also noting that this is a well-respected expert who has given a carefully considered opinion, I consider that I must give it considerable weight for the purposes of determining today’s application.
Now, the issues before me are relatively constrained. They involved:
(i)whether the child should be allowed to travel overseas to the United States of America from about 27 June to 11 July, and if so, on what terms;
(ii)whether the breathalyser orders should be dispensed with;
(iii)whether the time the child spends with Ms Canfield should change, in a small degree, by reason of her moving to a short drive from the biological parents’ house;
(iv)whether the three respondents should be restrained from referring to the child other than be her full legal surname on documents;
(v)and whether the three respondents should be restrained from allowing the child to refer to any person as “Mum” other than Ms Canfield and Ms Taimana.
Each party seeks parenting orders as defined in Part VII, Division 5, and I note section 64B and the Court’s power to make such orders at 65D. The paramount consideration is the best interests of the child, I note section 60CA and 65AA.
The primary considerations, when determining best interests are first and foremost the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and the second is the benefit to the child of a meaningful relationship with both parents. That those are my obligations. There is no suggestion that any party would intentionally harm X. I note that greater weight is to be given to protection. Those are the twin pillars referred to in Mazorski & Albright [2007] FamCA 520 (see Brown J at 3).
There are voluminous “additional considerations” in section 60CC(3), which are to be considered subject to what was said in Banks & Banks [2015] FamCAFC 36 about the parties defining those issues, as they have done here. I note what was said in Goode & Goode [2006] FamCA 1346 at paragraph 68, that an interim process will be:
…an abridged process where the scope of the enquiry is “significantly curtailed”.
And that:
Where the Court cannot make findings of fact it should not be drawn into issues or matters relating to the merits of the substantive case where findings are not possible.
Nevertheless, having said, that, as was said in Marvel & Marvel [2010] 43 Fam LR 348 at paragraph 120:
…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.
I also note SS & AH [2010] FamCAFC 13 (‘SS & AH’) at 88:
…findings made at an interim hearing should be couched with great circumspection…
Having said that, as the Full Court said in Eaby & Speelman (2015) FLC 93-654, the inability to make findings of fact:
…does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
I note further note what was said in SS & AH in 2010 and Deiter & Deiter [2011] FamCAFC 82 at [61] about risk assessment:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. 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.”
Those are the general principles that govern the determination in this matter.
As I have said, the issues are relatively narrow.
First I will deal with is overseas travel. Ms Canfield seeks an order prohibiting the child from being removed from Australia. It seems to me that the order I made at order 2 on 8 February 2023, page 137 of MFI3, makes that the current position, so no further order is required if that position is to be maintained.
The application is the respondents’ application. The respondents want order 4 of the consent orders, which allow the psychological parents to obtain a passport without the biological parents’ consent discharged, and order 2 of the orders of 8 February 2023, which is the prohibition, suspended for a period, with orders that a passport be obtained in effect so they can take the child to the USA, which is a Hague Convention country, from 27 June to return no later than 11 July 2023. The purpose is to attend a family wedding. They offer appropriate make-up time for the period in regards when the child is away. I note the ICL supports the application.
As I have said, this is a high-conflict case, for reasons which should be clear reader by now.
Ms Canfield opposes this application. The respondents have a wealthy and successful relative in the USA, who it is suggested might be a financial resource. The respondents say they want to go to a family wedding, which is a significant event which will benefit them and the child.
I refer to the well-known decision of Line & Line (1996) 21 Fam LR 259, which has been followed and applied on many occasions, noting that each case falls to be decided on its own facts, but it does set out the type of considerations to be considered when such a parenting order is made for overseas travel is made, and noting the general principles apply.
Counsel for the respondent pointed to the absence of evidence of intent not to return, but this is always an issue of balancing risk, and I note what the Full Court said in Line & Line at 4.49, that:
The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
There is no doubt this is an extremely high-conflict case, and the possibility exists, as has unfortunately occurred in other cases, that once the person has a child out of the country, they will decide that rather than returning from the USA, which is a Hague Convention country, they will do what is very simple these days and just book a ticket and end up in for example Country F, which is not a party to the Hague Convention, but is the culture they say they are aligned with.
Now, while Ms Canfield’s concerns may be entirely groundless, I do not know. Given the very high level of conflict and the unfortunate fact that sometimes parents with a child do not return, even with undertakings and bonds or houses on the line, I consider Ms Canfield’s a reasonable concern, and it is certainly one that I had when I read these papers.
Nevertheless, taking into account the Line & Line considerations, however, the three respondents are well connected to this jurisdiction. The elderly parents live here. To take the child and not return, they would have to abandon the care of the elderly parents or else try and return them to Country F too, they would have to give up their lives in Australia, and they would have to understand that because they would have to give undertakings and bonds, that if they kept the child overseas and then ever did return to Australia, they would then expect to go to prison.
Now, there can never be certainty in these matters, and as I said, I understand Ms Canfield’s concern. Nevertheless, on balance, I think it is appropriate to allow the respondents to take the child to the United States of America, but in line with the authorities in Line & Line and following, I also consider it appropriate that there be two processes put in place to encourage their return.
The respondents do not own a house, but they have jointly offered through their counsel a bond of $50,000. Now, whilst that is not a large sum if international proceedings are required, it is a considerable sum given their financial circumstances.
The second thing, as I have highlighted, is that I will require each of the three respondents to give an undertaking to the Court in a form I will publish with the orders, making it clear they understand that if they do not return the child to Australia, then if they ever enter Australia again, their names will be at the Border Control, they will be arrested, and they should expect to be sent to prison. They should not have any problem signing those undertakings, because as they tell me, that is not going to happen, but it is unfortunate a small number of people do the wrong thing, and therefore we have to take great care when dealing with everybody.
I think that is sufficient to give the Court and hopefully Ms Canfield comfort that nothing is going to go wrong.
As I have said, I will enter a form of orders to facilitate the issuing of a passport and the suspension of the restraint on departing the country from 26 June on condition the three respondents provide a satisfactory bond for $50,000 and file the undertakings which I will order by 26 May 2023.
The next issue is the breathalyser. Now, in effect, this turns around the other way. Ms Canfield says the order is not necessary and should be dispensed with, and points to what was said at paragraphs [50- 51] of the family report, in which the report writer recorded that:
50.[Ms Taimana] stated that she does not have any current concerns. She noted that the Court’s involvement has forced [Ms Canfield] to reduce her alcohol intake and engage with appropriate mental health supports. [Ms Taimana] stated that she believes this has assisted [Ms Canfield] significantly. She noted that if [Ms Canfield] maintains this, then [Ms Taimana] will continue to be confident that the child is safe in [Ms Canfield’s] care. However, she noted concern that these changes may not be maintained once [Ms Canfield] is no longer under the scrutiny of the Court, in which case [Ms Taimana’s] concerns are centred around the potential for [Ms Canfield] to engage in excessive alcohol intake and the detrimental impact this has on [Ms Canfield’s] mental health.
51.[Mr Taimana] and [Ms Ioane] do not have any concerns for the child’s wellbeing and safety as a direct result of [Ms Canfield] caring for her. They are aware of historical issues for [Ms Canfield] with alcohol. However, their primary concern is for the long-term impact on the child of having to maintain contact with [Ms Canfield] related to cultural clashes that will be discussed later in this report.
Despite having said that they no longer think there is a concern when they spoke to the family report writer the respondents, and the ICL, oppose these orders being dispensed with. These are high-conflict interim proceedings. In effect, for the same reasons I am going to require a bond and undertakings, which will give Ms Canfield some comfort, I note Ms Canfield has the equipment, that it is not an onerous obligation, and that if there is no issue with alcohol consumption, continuing this process is a minor inconvenience. It gives the three respondents peace of mind, and the ICL, and in circumstances where it is an existing order that I must be satisfied should be dispensed with, I am not satisfied that Ms Canfield has met the onus of persuading me that there is a proper basis for interfering in the existing order. Consequently, I will not remove orders 6 to 10, or the orders relating to the breathalyser.
In terms of orders for time with, the current orders provide for the child’s time with Ms Canfield. Ms Canfield’s proposed changes are set out at 6 of her proposal and order 7 regarding changeover, and as set out in Ms Canfield's Amended Application in a Proceeding:
6.That Orders 4 - 6 (inclusive) of the Orders dated 2 May 2022 be varied and thereafter the child [X] born […] 2020 shall spend time with the Applicant Mother as follows:
a.Each alternate weekend from 5:00pm Friday until 9:00am Monday with such weekend to commence on the first Friday after the making of these orders; and
b.Each Wednesday evening from 5:00om until 7:30pm.
c.From 2:00pm Christmas Day until 2:00pm 27 December in odd numbered years: and
d.From 2:00pm 23 December until2:00pm Christmas Day in even numbered years.
7. Change over shall be facilitated at [M Park], [City N].
Ms Canfield’s point is that the change in location and reduction in travel time is a significant change of circumstance which warrants a review of the existing orders, I agree. Often, orders for time with are significantly affected by the large distances in Australia. If this were a low‑conflict case, it would almost certainly follow that a significant reduction in travel time would prompt an adjustment of the time a child spends with the non-residential parent. It would almost invariably follow that rather than having video time, the midweek time would be in person.
However, whilst I accept that Ms Canfield has made out the first point, that there has been a significant change of circumstance which warrants the Court reviewing the position, that does not of course mean that I must or should then change the orders that are in place. Ms Canfield’s proposal and change, though not significant, is opposed by the three respondents and, significantly, is opposed by the ICL.
The ICL urged the Court to show great restraint, as the authorities require me to do, in making any changes to the time-with orders in a high-conflict case where, on one view of the orders, if the expert’s opinion is ultimately accepted, it may be a no-time case.
While I see merit in Ms Canfield’s application, in particular, and am a little bit surprised that the respondents do not want to have an entire weekend with the child, nevertheless, given the level of conflict and given the obligation to take a very cautious approach on an interim hearing, and noting that this is case where the child is already having weekly time with Ms Canfield, so it is not a case where because of distance the child was having only time once a month or something along those lines, which would be a different case, I am satisfied that the weekly time with Ms Canfield that the child currently has is sufficient time with her to allow the maintenance of a meaningful relationship with Ms Canfield.
In those circumstances, although I accept that Ms Canfield has met the threshold for me to reconsider the matter, having reconsidered the matter and the application of the authorities, I do not consider it appropriate to change the time-with or communication orders that are currently in place.
Obviously, changeovers need to be reconsidered and agreed. It seems to me that to the extent that changeovers are ordered, that the changeover order at 6 in the orders of 2 May 2022 are changed, order 6.2, 6.3, 6.4 and 6.5 should either be re-included or not changed, which is to say that parties are to behave in a civil and courteous manner, will conduct themselves in a child-focused manner and limit their conversation to matters that pertain to the immediate matters of the child passing from one household to the next and will not discuss issues of controversy between them.
I understand that the parties agreed to a McDonald’s. The parties can tell me at the end of these reasons whether they have agreed on a McDonald’s or whether I need to look at Google and find a McDonald’s that is halfway.
The fourth issue is the child’s name. The child has a legal surname which includes Ms Canfield’s name. Ms Canfield apparently holds concerns that the three respondents may not use the child’s full name. The three respondents deny it is an issue. On that basis, and on the same basis I will not remove the breathalyser order, I will make this injunction, as it can, on the three respondents’ submissions, make absolutely no difference to them. If it was to make a difference to them, then it would be an appropriate order to make, and as with the maintenance of the breathalyser, if it provides Ms Canfield with a bit more comfort, it may assist the parties and ultimately the child. So I will make the injunction regarding the use of the child’s full name.
The last issue is whether or not the child should be allowed to call anyone other than Ms Canfield and Ms Taimana “Mum”, which is proposed order 9. There is a real difficulty in practical terms with this order. It is a commonly made order where there are only biological parents involved, and sometimes there is a new partner. It is very common to say that the child cannot call a new partner “Mum” or “Dad”, but this is not that case. The child now lives in the house with the biological mother, and the biological siblings are living in their house, and doubtless they are calling the biological mother “Mum”. And it seems to me it would be very confusing and difficult for the child to have the other children be allowed to call the biological mother “Mum” but to say that [X] cannot call her “Mum”.
I also note the cultural issues that have been raised around calling other extended members of the family “Mum”, and whilst that is perhaps somewhat more unusual, if the biological siblings are also using that terminology, I do not think it would be good to separate the child out. In those circumstances, on balance and in this particular case, I do not consider that to be an appropriate order.
The parties have now agreed on the McDonald’s for changeover and I will make that order.
Those are my reasons.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 8 June 2023
0
5
0