Catrine & Isak (No 2)
[2024] FedCFamC1F 311
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Catrine & Isak (No 2) [2024] FedCFamC1F 311
File number: BRC 2585 of 2019 Judgment of: CAREW J Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – CHILDREN – Best interests – Where on the first day of trial, the parents presented a signed minute of order resulting in a change in the primary care of the child – Where the independent children’s lawyer did not consent to the proposed order but did not oppose the order – Where the matter was adjourned part-heard to enable the parents to file sufficient evidence to satisfy the Court that the agreed arrangement was in the best interests of the child – Where the children lived with the mother and spent time with the father after separation – Where there was a change in care in 2019 following the mother’s voluntary admission to a psychiatric hospital – Where a consent order was entered in relation to the two older children, and a dispute only remained about the arrangements for the youngest child – Where there were allegations of significant family violence suffered by the mother which were disputed by the father – Where the mother has demonstrated her continued recovery from mental illness and/or alcohol addiction over an extended period – Where the parents now present a united front about what order best meets the child’s future interests – Where the child will live with the mother and spend five nights a fortnight with the father – Where the parents will share parental responsibility, save for health and education in which the mother will have sole parental responsibility.
FAMILY LAW – COSTS – Where the independent children’s lawyer made an application against the parties or their solicitors for costs thrown away as a result of the adjourned trial and an application against the mother for costs of the trial adjourned in 2021 – Where the parents are both represented in proceedings by a grant of legal aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme – Consideration of the meaning of “legal aid” in s 117(4) – Where both parents are employed – Where an order for the father and mother to equally share the costs thrown away by the adjournment but not for the entire trial is justified in the circumstances.
Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65DAA, 65DAC, 117
Family Law Amendment Act 2023 (Cth) s 12
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Legal Aid ACT & Westwell (2021) FLC 94–013
M & M (1988) 166 CLR 69
Number of paragraphs: 75 Date of hearing: 13 & 14 March and 10 May 2024 Place: Brisbane Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: Lander Solicitors Counsel for the Respondent: Mr Hartwell Solicitor for the Respondent: Focus Family Law Counsel for the Independent Children’s Lawyer: Ms Murphy Solicitor for the Independent Children’s Lawyer: Pippa Colman Family Law ORDER
BRC 2585 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CATRINE
Applicant
AND: MS ISAK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS UPON THE CONSENT OF THE APPLICANT AND RESPONDENT THAT:
1.All previous Orders and all outstanding applications are hereby discharged.
Parental Responsibility
2.Mr Catrine (“the father) and Ms Isak (“the mother”) ("the parties") shall have equal shared parental responsibility in relation to major long-term issues (as defined by s 4(1) of the Family Law Act 1975 (Cth) as amended) affecting Z born 2013 ("the child"), save for health and education in which the mother shall hold sole parental responsibility.
3.Unless otherwise agreed between the parties in writing, the child shall attend H School for the remainder of his primary and secondary education.
Live With & Spend Time with Arrangements
4.The child shall live with the mother.
5.The child shall spend time with the father as agreed between the parties in writing and failing agreement, each alternate weekend from Friday after school or 3.00pm until Wednesday before school or 8.30am on that day.
6.The father will enrol in a K Program within 14 days of the date of this Order at Town J Community Centre and provide a certificate of completion of the program to the mother within 14 days of completion.
Changeovers
7.Changeovers shall take place at the child's school unless a non-school day, in which case changeover shall take place at the resident parent’s residence.
8.Each parent is to keep the other parent informed at all times of their contact telephone number and residential address.
Telephone/FaceTime Communication
9.The child is at liberty to communicate with the parent whom he is not spending time with by telephone call or facetime each Wednesday and Sunday at 5.30pm and the resident parent is to facilitate the call.
10.The parties shall communicate with each other in relation to parenting matters by way of a parent communication application as agreed between the parties and failing agreement 'AppClose'. The parties will communicate about the child using the application except in the event of an emergency in which case the parties may contact the other by telephone or text message.
School Holidays
11.For the purposes of the school holidays each year as provided by the child's school, the child spend time with the parties in a week on/week off arrangement from Friday 3.00pm until the following Friday 3.00pm (instead of the child’s usual time with the parties) such that the alternate weekends stay consistent.
Special Occasions
12.Notwithstanding any other provision in this Order, the child shall spend time with each parent during the Christmas period unless otherwise agreed in writing between the parties:
(a)In the even numbered years, the child will spend time with the mother from 5.00pm Christmas Eve until 1.00pm Christmas Day and with the father from 1.00pm Christmas Day until 5.00pm Boxing Day; and
(b)In the odd numbered years, the child will spend time with the father from 5.00pm Christmas Eve until 1.00pm Christmas Day and with the mother from 1.00pm Christmas Day until 5.00pm Boxing Day.
13.Notwithstanding any other provision in this Order, the child shall spend time with the father on the Father's Day weekend, should the child not be spending time with the father that weekend, the child spend time with the father from the Saturday immediately preceding Father's Day at 5.00pm until 5.00pm Sunday.
14.Notwithstanding any other provision in this Order, the child spend time with the mother on the Mother's Day weekend, should the child not be spending time with the mother that weekend, the child spend time with the mother from the Saturday immediately preceding Mother's Day at 5.00pm until 5.00pm Sunday.
15.The parties shall not consume alcohol or illicit drugs while the child is in their care (and by so ordering this Honourable Court should not be taken to be condoning the parties consuming illicit drugs at any time).
Holiday Time
16.Each parent shall be at liberty to exercise holiday time with the child on one occasion per year for a period of up to 2 weeks unless otherwise agreed and in relation to this holiday time the following will apply:
(a)The parent wanting to exercise holiday time will give written notice to the other parent of their desire to exercise holiday time and provide the dates of proposed holiday time;
(b)The parent will provide at least 28 days' notice to the other parent;
(c)This holiday time will override all other arrangements as set out in this Order;
(d)The parents cannot combine holiday time over a calendar year; and
(e)Provided the above are complied with, the holiday time will be granted.
Overseas Travel
17.The parties shall sign all documents and do all things necessary to have the child issued with an Australian Passport and arrange for renewal of the passport each time such passport becomes due for renewal, and for this purpose:
(a)The mother shall forward a partially completed passport application/renewal form to the father;
(b)The father shall within 7 days of receipt of such form, complete and sign the form and return the form to the mother; and
(c)The parties shall meet the costs associated with obtaining the passport application and/or renewal equally.
18.At all times when not being used, the passport shall remain in the care of the mother.
19.The parties are permitted to travel overseas with the child during any periods that the child is in his or her care, or at such times as otherwise agreed, provided:
(a)That the travelling parent gives the other parent one month's written notice and provides an accurate itinerary including the departure and return dates, copies of appropriate travel insurance, copies of any visas, and contact address and telephone numbers whilst overseas (unless in the event of an emergency, in which case the travelling parent is to inform the other parent as soon as practicable);
(b)Upon receipt of same, the mother shall forthwith release to the father the passport for the child;
(c)The travel time does not interfere with the other parent's usual time with the child, without the other parent's written consent;
(d)The travelling parent shall provide to the other parent a copy of the return tickets for the child;
(e)During the time of travel, the travelling parent must carry a mobile phone, which is, for the time of travel, on and charged; and
(f)The travelling parent must obtain, at the travelling parent's expense:
(i)Appropriate travel insurance (incorporating medical insurance for injury or sickness) for the child for each day of travel, including the departure and return date; and
(ii)Any necessary visas.
Specific Issues Orders
20.Neither party shall:
(a)Denigrate the other parent or allow any third party to denigrate the other parent in the presence or hearing of the child;
(b)Question the child about the personal life of the other parent;
(c)Speak disrespectfully of the other parent and family;
(d)Discuss the Court proceedings with the child; and
(e)Expose the child to any form of family and domestic violence.
21.Both parents are to advise the other parent immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended.
22.This Order shall act as an authority to all medical and health care providers attended upon by the child to provide information to the parties, as requested by them, as to the health of the child.
23.Each party shall inform the other of the name and address of all medical and health care providers that assess or treat the child within 24 hours of any such treatment or assessment taking place.
24.The parties are authorised to obtain school reports, photographs, and information in relation to the child's education from the child's school at all times and are authorised to attend all school functions, extra-curricular activities and events which parents would ordinarily attend.
25.The mother shall continue to engage with her treating psychiatrist as recommended by her treating psychiatrist.
26.Neither party shall use physical discipline in respect to the child.
27.The father shall ensure that anyone in the household is clothed at all times around the child and ensure that the child has his own bedroom and use his best endeavours to ensure the child sleeps in a bed alone.
Restraint regarding Mr L
28.The parties are restrained from leaving the child unsupervised with Mr L at any time or any place.
Dispute Resolution
29.The process to be used for resolving disputes about the term or operation of this Order shall be as follows:
(a)The parties shall consult with a Family Dispute Resolution Practitioner to assist with resolving any disputes or reaching agreement about changes to be made;
(b)The parties shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the parent initiating the dispute shall nominate 3 practitioners (one of which is to be a free service) and advise in writing the details of their fees, experience and availability;
(d)The other parent shall choose one of the listed practitioners within 7 days of receipt of the list; and
(e)If the other parent fails to choose then the parent initiating the dispute shall choose.
30.The father’s application declaration pursuant to s 107(1) and (4) of the Child Support (Assessment) Act 1989 (Cth) that the father be removed as a liable parent for the child D born 2010, and pursuant to s 127 of the Child Support (Assessment) Act 1989 (Cth) that a re-assessment occur for child support for X born 2006 and Z born 2013 is dismissed.
31.The father is to pay to Legal Aid Queensland the sum of $2,184 as a contribution to the intendent children’s lawyers (“ICL”) costs within 30 days.
32.The mother is to pay to Legal Aid Queensland the sum of $2,184 as a contribution to the ICL’s costs within 60 days.
NOTATION
A.The father shall within 7 days release the child from his private health policy to allow the mother to add the child to her existing private health policy.
B.The father’s application for a declaration pursuant to s 107(1) and (4) of the Child Support (Assessment) Act 1989 (Cth) was not pressed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
At a case management hearing on 25 August 2023, this parenting dispute between Mr Catrine (“the father”) and Ms Isak (“the mother”) was set down for a ten-day final hearing to commence on 11 March 2024, such were the complexity and number of issues requiring forensic determination.
At a further case management hearing on 2 February 2024, the parties informed this Honourable Court that the issues requiring determination had narrowed but would still require five days to be heard.
The parties identified the witnesses they proposed to call at the trial including in the father’s case, his partner, Ms B, and in the mother’s case her treating psychiatrist, Dr F.
The trial was due to commence on 13 March 2024.
On the afternoon of 13 March 2024, the parents presented a signed minute of order that provided for their ten-year-old son, Z, to move from living primarily with his father, with whom he has lived since May 2019, to living nine days a fortnight with his mother and five days a fortnight with his father.
The independent children’s lawyer (“ICL”) did not consent to the proposed order given her inability to be satisfied that key risk factors had been satisfactorily addressed by the evidence but did not oppose the making of the order.
Given the serious nature of the risks posed by both parents and the inability of either party to satisfactorily address those risks by reference to evidence, the matter was adjourned part-heard on 14 March 2024 to 10 May 2024 to enable the parents to file evidence sufficient to satisfy the Court that the order the parties have agreed to is in the best interests of the child. My ex tempore reasons delivered on 14 March 2024 should be read with these reasons.
The risk factors identified by the parties in the lead up to the trial can be summarised as follows:
(1)Is the father’s current relationship with Ms B marred by family violence given the serious nature of the allegations made against him by the mother in these proceedings including that he once committed a serious act of violence?
(2)What will be the living arrangements for Z once Ms B and her three daughters commence to live at the father’s home as planned in April 2024?
(3)Has the father continued to use marijuana or other illicit substances?
(4)How is the mother managing her long history of mental illness including a diagnosis of a mental health disorder, anxiety, depression, and possibly post-traumatic stress disorder (“PTSD”)?
(5)How is the mother managing the risks associated with her long history of alcohol abuse?
Additional material relied upon by the parties since 13 March 2024
Since the commencement of the hearing on 13 March 2024, the father relies upon additional material, namely, a Response to an Application for costs made by the ICL, an affidavit by his partner, Ms B, filed on 9 May 2024, two pathology test results which became exhibit 16, and an affidavit by his solicitor, Mr Lander, filed by leave on 10 May 2024.
The mother relies upon additional material, namely, a Response to an Application for costs made by the ICL, a further affidavit by herself filed 9 May 2024, an affidavit by Dr F filed 7 May 2024, and an affidavit by her solicitor, Ms Britton, filed 9 May 2024.
By her Application in a Proceeding filed 1 May 2024, the ICL makes an application for costs thrown away as a result of the adjourned trial that was due to commence on 13 March 2024 against the parties or in the alternative against the parties’ solicitors, and an application for the costs of an application to adjourn the trial that was originally set down for hearing in 2021 against the mother. In support of her application, the ICL relies upon her affidavit filed 1 May 2024.
No application was made by the ICL to cross-examine either party or any witness and the matter proceeded on the papers.
Before turning to the submissions, it will be helpful to set out some background.
BACKGROUND
The father and mother commenced cohabitation in or about 2005 and married in 2008. They separated on a final basis on 12 December 2018 and divorced in 2020.
The father was born in 1978 and is 45 years of age. The father is employed as a public servant.
The father lives in a three-bedroom rental home in Town J. The father re-partnered with Ms B, aged 35, in early 2023 although they do not currently live together. The father and Ms B expressed an intention to the family report writer, Ms G, in or about 16 January 2024, to commence to live together in April this year, but have not done so.
The mother was born in 1979 and is 44 years of age. The mother identifies as Aboriginal and is employed four days a week by an Indigenous community group.
The mother lives in a four-bedroom home in Town J. Following separation, the mother re‑partnered with Mr C. Mr C is 50 years of age and employed as a tradesperson. Mr C identifies as Aboriginal. Their relationship commenced in 2019 and they married in 2020 but separated in late 2023. Mr C now lives in a three-bedroom property in Town J with his youngest child from a previous relationship.
At the commencement of these proceedings, they related to the care of three children, namely, X born 2006 (“X”), D born 2010 (“D”), and Z born 2013 (“Z” or “the child”).
Mr C was joined to the proceedings as the second respondent on 3 September 2021 after it was confirmed that he was the biological father of D.
After separation, the mother and father agreed to an informal arrangement for the children to live with the mother and spend each alternate Monday and Wednesday after school until 6.00pm and each alternate weekend with the father.
Proceedings were commenced by the father in March 2019.
In mid-2019, an interim order was made by consent for the children to live with the father after the mother was admitted to a psychiatric hospital as a voluntary patient. The parents shared parental responsibility. The mother spent time with the children three afternoons per week from after school to 6.00pm and each Sunday afternoon supervised by one of the maternal grandparents, Ms M, or another agreed party.
From 29 August 2019, by further interim order by consent, the children’s time with the mother increased to each alternate weekend on both Saturday and Sunday from 9.00am to 5.00pm and each alternate Wednesday and Friday from after school until 6.30pm. The requirement for supervision was removed.
This arrangement continued for Z until 8 August 2022 when an interim order was made by consent for a gradual increase in his time with the mother to each alternate Wednesday and Friday after school and each alternate weekend.
The arrangements for the older children, X and D, substantially changed in 2021. X commenced living with the father full-time in April 2021 and spends time with the mother in an ad hoc manner in accordance with her wishes. X has since commenced living independently. Following the discovery of D’s biological father and allegations of family violence made against the father, D commenced solely living with the mother in June 2021.
A consent order was made 12 March 2024 wherein the parties agreed that all outstanding applications in relation to X would be dismissed. X will live and spend time with the father and mother in accordance with her wishes. The mother has sole parental responsibility for D who will live with the mother. The consent order also removed Mr C as a party to the matter.
Following further orders made by consent in September and October 2022, Z has lived with the father and spent time with the mother each alternate Wednesday night and each alternate weekend. The child spent approximately equal time with each of the parents during the 2023 summer school holidays.
The mother currently lives with her children, Mr W aged 22 and D aged 14. X visits from time to time.
The mother contends that she was subjected to significant family violence by the father including the following:
(a)In 2010, the father caused substantial damage to a hotel room while intoxicated and threatened violence against the mother resulting in police being called;
(b)In 2015, the father assaulted the mother in front of many people, and later that evening, the father committed serious acts of violence against the mother resulting in police being called;
(c)As a result of the assault the mother attended the hospital where her injuries were recorded;
(d)“On other occasions” the father threatened to punch the mother in the head and to burn the house to the ground with the family inside;
(e)Also in 2015, the father repeatedly hit the mother in the face and arms while she was driving and the children were in the car; and
(f)In 2018, during an argument, the father struck the mother on the side of her face with his hand and later entered the bedroom and pointed a knife at the mother resulting in the police being called.
The mother contends that the children were a witness to many instances of violence perpetrated by the father against her.
The father denies the allegations of family violence and contends that the conflict between the mother and himself arose as a result of the mother’s alcohol abuse and mental illness. In particular, the father:
(a)Denies he caused substantial damage to a hotel room in 2010 or threatened violence against the mother and contends that he was never charged with any such behaviour;
(b)Denies assaulting the mother in 2015 and contends that the mother was injured after falling down stairs while intoxicated;
(c)Denies threatening to punch the mother in the head or burn down the house;
(d)Denies hitting the mother in 2015 while she was driving the car and contends that the mother was driving while drunk with the children in the car and crashed the car into a venue; and
(e)Denies striking the mother in 2018 and contends the mother was drunk and following him around the house screaming at him and then locked herself in the bedroom and he used a butter knife to open the door but denies pointing the knife or threatening the mother. The father contends that the police took out protection orders against both of them.
The father contends that the children witnessed the mother’s violent intoxicated outbursts.
Neither party seeks any findings in relation to the disputed allegations and counter allegations and given the contested nature of the evidence no findings can be made without cross‑examination and production of any corroborating evidence.
APPLICABLE LEGAL PRINCIPLES
The Family Law Act 1975 (Cth) (“the Act”) has recently been amended with effect from 6 May 2024 save where a final hearing has already commenced.[1] As the final hearing of this matter commenced on 13 March 2024 (although no oral evidence was heard), it would seem the provisions of the Act prior to amendment continue to apply. No submissions were made on this point.
[1] Family Law Amendment Act 2023 (Cth) s 12.
Parenting proceedings continue to be regulated by the Act and s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare (s 43(1)(c)); and
(b)The need to ensure protection from family violence (s 43(1)(ca)).
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is ‘proper’.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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, and any other fact or circumstance considered relevant (s 60CC).
When considering whether to make an order with the consent of all the parties to the proceedings, the Court may, but is not required to have regard to all or any of the matters set out in subsection (2) or (3) of s 60CC (s 60CC (5)). In this case, while the parents’ consent to the proposed order, the ICL does not.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
As the parents have consented to the proposed order, and no party has sought to cross-examine any witnesses, it is not possible to make any findings as to the truth or otherwise of allegations made by each party in the proceedings.
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[2] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[3] on each and every factual dispute.
[2] Baghti & Baghti and Ors [2015] FamCAFC 71.
[3] M & M (1988) 166 CLR 69 at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections to the extent necessary given the issues joined in the case.[4]
[4] Banks & Banks (2015) FLC 93–637.
DISSCUSSION
It is not a common occurrence for the Court to refuse to make an order that is consented to by both parents but in circumstances where an ICL does not consent, it is necessary to be cautious, particularly given the history of this matter. It was common ground between the parties that if the order was not made and the trial proceeded, I should recuse myself from further hearing the matter given the concessions made by each party for the purposes of their agreement.
By an amended Initiating Application filed on 8 February 2024, the father was seeking an order for Z to continue to live with him but to spend four nights per fortnight and half school holidays with the mother. No order was sought that the mother’s time with the child be supervised.
By an amended Response to Initiating Application filed on 13 February 2024, the mother was seeking an order for the child to live with her but to spend four nights per fortnight and half school holidays with the father. No order was sought that the father’s time with the child to be supervised.
In considering whether to make the proposed order consented to by the father and the mother, I take into account the following matters:
(a)The change in the primary care arrangements for the child in 2019 only came about because the mother was hospitalised as a result of her mental illness and/or alcohol addiction and the mother has demonstrated her continued recovery over an extended period;
(b)The mother has been spending unsupervised time with the child without any serious issues arising;
(c)The child continues to do well at school and will continue at the same school for the balance of his schooling;
(d)Changeovers occur at the residence of each party and there have been no incidents of family violence on those occasions;
(e)Ms B has confirmed in her recent affidavit that she has neither witnessed nor experienced family violence by the father;
(f)Exhibit 16 establishes that the father submitted to a urine drug test on 18 March 2024 which was negative for drugs;
(g)The mother has been very proactive in attending to the child’s needs at school and elsewhere;
(h)The allocation of sole parental responsibility over health and education for the child will minimise the prospect of future conflict over parenting issues;
(i)On occasions when the mother has made complaints to police and the Department of Child Safety, Seniors and Disability Services relating to the father’s care of the child, no charges or interventions have occurred;
(j)The proposed order requires the father to ensure that the child is not exposed to nudity by Ms B or her three daughters; that he has his own bedroom; and that the father take all reasonable steps to ensure that the child sleeps in his own bed alone, which addresses concerns raised by the mother;
(k)The proposed order requires the father to enrol in a Men’s Change Course within 14 days of the order;
(l)The mother’s treating psychiatrist corroborates the mother’s evidence about her continuing treatment and support.
Dr F provides the following evidence:
(a)Dr F has been treating the mother since May 2019 and since then the mother has engaged in sessions with Dr F, up to 28 February 2024, on 57 occasions;
(b)On 15 May 2019, Dr F diagnosed the mother with post-traumatic stress disorder (“PTSD”), anxiety and depressive symptoms consistent with her reported history of a domestically violent relationship;
(c)The mother has “proactively attended the Dialectical Behaviour Skills Training Program (“DBT program”) aimed at helping people learn skills to better tolerate high levels of distress, regulate emotions and improve resilience to ‘negative’ emotions, and be more effective in interpersonal relationships” and has done so on a voluntary basis for the past five years with her attendance being “impeccable”;
(d)When attending the DBT program the mother also has access to the gymnasium for exercise physiology sessions which she regularly undertakes to “proactively support her mental health”;
(e)For the past three years, Dr F has prescribed medication for the mother which the mother takes daily in the evenings to help her sleep and manage her PTSD symptoms including recurring nightmares and anxiety. Dr F clarifies that the dose prescribed is “only effective in providing sedation, and is not a therapeutic dose for mood or psychotic disorders” (as suggested by Dr E);
(f)Dr F disagrees with Dr E’s statement that “psychiatric issues in 2009/2010 were the result of an unusual [mental health disorder]”. In Dr F’s opinion, the mother’s presentations to mental health services during that time were “due to alcohol intoxication and maladaptive coping consistent with that of someone experiencing trauma in a domestic violent relationship” and that the mother developed a substance use disorder during her relationship with the father which has been in remission with the mother “having had two separate lapses with alcohol since [mid] 2019, both of which were limited to one day”;
(g)Dr F opines that from her longitudinal experience of treating the mother “she does not have a Major Mood Disorder, Delusional Disorder, OCD nor a Personality Disorder” and that the mother has “developed emotional stability as a result of engaging in DBT courses and has demonstrated an ability to cope with stressors appropriately”;
(h)Dr F does not believe the mother’s children are at any unacceptable risk of harm and “absolutely” supports the mother having the primary care of Z and any other children;
(i)Dr F describes the mother as “extremely capable, ready, willing and able to meet all of her children’s needs”.
The father contended in his trial affidavit that he and Ms B intended to live together as from April 2024. That time has come and gone. Ms B deposes in her recent affidavit that she lives in City N, while the father lives in Town J in Region O. Ms B makes no mention of any plans to live together and contends that she spends time with the father on weekends and mid-week fortnightly. The father has not filed any further affidavit. I am none the wiser about his plans with Ms B. No explanation is provided for the absence of that evidence.
As a result of concerns about possible ‘boundary issues’ in the father’s household concerning nudity and privacy which had caused some discomfort for the child, the child commenced to attend counselling and protective behaviours sessions at P Services from January 2023 to January 2024. The child told the family report writer that he had found those sessions helpful. The child also reported to the family report writer that he has an incredible teacher at school. There have been some behavioural issues for the child reported by the school who is nevertheless described as a “highly intelligent and capable student”. There was a recommendation that the child be assessed by a paediatrician in relation to his inattention and impulsivity given his observed behaviours and the mother intends to ensure that occurs. It should be noted however that the family report writer opined:
The report writer's concern is that [the child’s] experiences of anxiety, inattention and lack of focus could be a by-product of his ongoing exposure (sic) parental conflict. It is emotionally and psychologically harmful to [the child] and both parties need to commit to reflecting on their behaviour and ensuring [the child] is not exposed to conflict and embroiled in adult issues as his mental health depends on this.
The family report refers to an issue concerning one of the child’s older male cousins who had allegedly been involved in some inappropriate sexual behaviour with a younger female cousin. As a result, the parents have agreed to include a provision in the order prohibiting the child from being left alone with the older male cousin.
The family report writer observed close and loving interactions between the child and all persons interviewed, including Ms B and her children.
It seems indisputable that the child has grown up in circumstances where he has been exposed to high conflict between his parents. Each of his parents have had issues in the past with alcohol and/or marijuana. Additionally, the mother has experienced mental illness.
The parents now present a united front about what order best meets the child’s future interests. They have each made concessions and that can only be a good thing for the child. Despite the history, it is apparent from the most recent family report that each parent has a lot to offer the child.
It is likely that each of them will continue to have some vulnerabilities, but they have each committed to doing better for their son and that is to their credit.
The child will soon turn 11 and he has expressed views to the family report writer that he would like to spend more time with his mother and has suggested that equal time would best suit him. The child’s wishes are supported by the family report writer. The child, like his sister, X, seems very astute. He recognises that each of his parents has faults but understandably he loves them both and wants them both to be part of his life. I commend the most recent family report to the parents and encourage them to read it again and take on board the observations and recommendations for self-improvement made therein but also to reflect on the extent to which all the children have been caught in the middle of their dispute for far too long.
Given the history of violence allegedly perpetrated upon the mother by the father, I must admit to having concerns that the mother may have felt under some pressure to resolve the matter in accordance with the signed minute of order. However, counsel for the mother submits that not only did the mother provide clear instructions to consent to the proposed order on 13 March 2024, but her instructions were also confirmed on 14 March 2024 and again on 10 May 2024 after having plenty of time to consider her position.
In the circumstances, I am satisfied that the proposed order signed by the parents is in the best interests of the child and I will so order, save that in relation to the provision requiring the father to enrol in a Men’s Change Program, I have included a provision for him to provide to the mother a certificate of completion of the program. Further, while I have included the agreed injunction restraining the parents from consuming alcohol or illicit drugs while the child is in their care, I want to stress that by so ordering, this Honourable Court should not be taken to be condoning the parties consuming illicit drugs at any time.
APPLICATION BY THE ICL FOR COSTS THROWN AWAY
The ICL is required by her grant of legal aid to make application for costs if the circumstances suggest such an application to be reasonable.
The power to grant costs in favour of the ICL is found in s 117 of the Act. The ICL submits that the conduct of the parents and/or their solicitors justify a costs order in the sum of $21,312.69 being the total costs expended by Legal Aid Queensland in relation to the trial.
The ICL submits that the parents’ failure to produce vital evidence for trial was the direct cause of the matter having to be stood over to 14 March 2024 initially and then 10 May 2024. The parents had represented to the Court and the ICL when the matter was set down for trial that certain vital witnesses would be providing evidence but failed to do so. The vital evidence was only filed on 9 May 2024 (the affidavit of Dr F and the affidavit of Ms B).
The ICL also seeks an order that the mother be responsible for the ICL’s costs of applying to adjourn the previous trial in 2021 as a result of a paternity test identifying Mr C as the biological father of D and the necessity thereby for him to be joined to the proceedings. The costs sought in relation to that application are $852.52.
The applications for costs are opposed by the parents and their solicitors.
Both parents were represented in the proceedings by a grant of legal aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme. The Scheme is not subject to a means test or merit test.
Relevantly, sections 117(4) or s 117(5) of the Act provide:
Section 117
…
Costs of independent children’s lawyer
(4)…in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
…
Funding of independent children's lawyer not to affect costs order
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney - General.
…
In Legal Aid ACT & Westwell,[5] the Full Court held that the reference to “legal aid” in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.
[5] (2021) FLC 94-013 at 80,356.
Both parents are employed. The father is employed as a public servant and his annual wage is $111,592. The mother is employed in a local community scheme four days per week and her wage is approximately $26,945 per annum. In relation to the mother, while her income is modest, I am not satisfied that a contribution towards the ICL’s costs thrown away by the delay in the finalisation of the current trial will cause her hardship.
I consider an order for the father and mother to equally share the ICL’s costs thrown away by the adjournment but not for the entire trial to be justified in the circumstances. I consider the total sum of $4,368 to be a just amount. I do not propose to make any further costs order against the mother for the adjournment of the trial in 2021.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 14 May 2024
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