Clayton & Minshall

Case [2021] FedCFamC1F 183

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Clayton & Minshall [2021] FedCFamC1F 183

File number(s): NCC 26 of 2014
Judgment of: AUSTIN J
Date of judgment: 10 November 2021
Catchwords: FAMILY LAW – CHILDREN – PARENTING – Best interests – With whom the children shall spend time –Where the applicant and second respondent fathers contended the existing regime could not be sustained given the intensity of the dispute between the parties – Where the dispute narrowed to whether the time the children currently spend with the mother should remain the same or be expanded, reduced or eliminated – Risk of harm – Where the applicant father and second respondent father allege the children are at risk of physical and emotional harm in the mother’s care and sought to eliminate the children’s time with the mother – Where the children are at risk of emotional harm from the mother’s impaired style of parenting – Where the only measure which could temper such harm is curtailment of the time the children spend with the mother – Orders made – Applicant and second respondent fathers to retain parental responsibility and residence, with the children to spend limited time with the mother.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 11F, 60B, 60CA, 60CC, 61DA, 62G, 64B, 65AA, 65D, 65DAA, 69ZT
Cases cited:

A v A (1998) FLC 92-800

Hepburn & Noble (2010) FLC 93-438

Keane & Keane (2021) 62 Fam LR 190

Minshall, Clayton & Anor [2019] FamCA 388

Re Andrew (1996) FLC 92-692

Sedgely and Sedgley (1995) FLC 92-623
Division: Division 1 First Instance
Number of paragraphs: 113
Date of hearing: 25, 26 & 27 October 2021
Place: Newcastle (via video link)
Counsel for the Applicant: Mr Murray
Solicitor for the Applicant: Toronto Legal
Counsel for the First Respondent: Ms McMahon
Solicitor for the First Respondent: NLS Law
Counsel for the Second Respondent: Ms Gibbons
Solicitor for the Respondents: Winder Lawyers

ORDERS

NCC 26 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CLAYTON

Applicant
AND:

MS MINSHALL

First Respondent

MR WILKIE

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

10 NOVEMBER 2021

THE COURT ORDERS THAT:

1.All former orders relating to the following children are discharged:

(a)X, born … 2009;

(b)Y, born … 2011; and

(c)Z, born … 2014.

2.The second respondent shall have sole parental responsibility for X.

3.X shall live with the second respondent.

4.The applicant shall have sole parental responsibility for Y and Z.

5.Y and Z shall live with the applicant.

6.The parties shall take all reasonable steps to ensure the children spend time with the first respondent as follows:

(a)from 9.00 am until 6.00 pm on the first Sunday in March, June, September and December each year, commencing in December 2021; and

(b)from 9.00 am until 4.00 pm on 24 December each year.

7.For the purpose of implementing Orders 3, 5 and 6, the parties shall exchange the children at the McDonalds Restaurant, Suburb CC, NSW.

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Clayton & Minshall [2021] FedCFamC1F 183
Case
[2021] FedCFamC1F 183
Decision Date

CaseChat Overview and Summary

The case of Clayton & Minshall involved a dispute between the applicant father, the second respondent father, and the mother over the parenting arrangements for their three children. The mother sought to either maintain or expand the time the children spend with her, while the fathers sought to either reduce or eliminate such time, alleging that the children were at risk of physical and emotional harm in her care. The matter was heard by Austin J, who was required to determine the legal issues of whether the children’s time with the mother should be expanded, reduced, or eliminated, and whether the children were at risk of harm in her care.

In reaching a decision, the court considered the evidence presented by the parties, including affidavits, documents, and expert evidence. The court found that while the children each enjoy meaningful relationships with their respective parents, the evidence pointed more strongly against either expanding or maintaining the frequency and duration of the children’s visits with the mother. The court also found that the children are at risk of emotional harm from the mother’s impaired style of parenting, and that the only measure which could temper such harm is curtailment of the time the children spend with the mother. The court accepted the expert opinion evidence of the Court Child Expert, finding it persuasive and not rationally rebuttable.

The court ultimately ordered that the applicant and second respondent fathers retain parental responsibility and residence for the children, with the children to spend limited time with the mother. The court also made orders to ensure the children’s safety and wellbeing, including prohibiting the mother from entering certain premises without the written consent of the applicant or second respondent, and requiring the parties to take all reasonable steps to ensure the children spend time with the mother as per the orders. The court further made orders to ensure the children’s communication with the mother, and to protect the children from denigration of either parent.

In conclusion, the court found that the children’s best interests are served by limiting the time they spend with the mother, and that the evidence does not convincingly dictate the elimination of such visits. The court’s decision was based on the evidence presented and the principles of the Family Law Act, with the paramount consideration being the children’s best interests.

Orders

Orders of the court

NCC 26 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CLAYTON

Applicant

AND:

MS MINSHALL

First Respondent

MR WILKIE

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

10 NOVEMBER 2021

THE COURT ORDERS THAT:

1. All former orders relating to the following children are discharged:

(a) X, born … 2009;

(b) Y, born … 2011; and

(c) Z, born … 2014.

2. The second respondent shall have sole parental responsibility for X.

3. X shall live with the second respondent.

4. The applicant shall have sole parental responsibility for Y and Z.

5. Y and Z shall live with the applicant.

6. The parties shall take all reasonable steps to ensure the children spend time with the first respondent as follows:

(a) from 9.00 am until 6.00 pm on the first Sunday in March, June, September and December each year, commencing in December 2021; and

(b) from 9.00 am until 4.00 pm on 24 December each year.

7. For the purpose of implementing Orders 3, 5 and 6, the parties shall exchange the children at the McDonalds Restaurant, Suburb CC, NSW.

8. The parties shall take all reasonable steps to ensure the children are able to communicate with the first respondent in the following manner:

(a) by the first respondent being able to send letters, cards, and/or gifts to the children no more frequently than once per calendar month, and

(b) by the applicant and second respondent promptly sending to the first respondent:

(i) written acknowledgement of receipt of the first respondent’s written communication, and

(ii) any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the first respondent.

9. Pursuant to s 68B of the Family Law Act 1975 (Cth), the first respondent is restrained from entering upon or approaching within 100 metres of the following premises without the written consent of the applicant (in respect of Y and Z) or the second respondent (in respect of X):

(a) the applicant’s residence;

(b) the second respondent’s residence; and

(c) any school attended by the children.

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

11. The applicant and first respondent shall notify the other of any medical emergency, illness or injury suffered by Y or Z whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

12. The second respondent and first respondent shall notify the other of any medical emergency, illness or injury suffered by X whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

13. The applicant and the second respondent shall authorise and request the principal of any school attended by the children to provide to the first respondent, at her expense, copies of all school reports and school photograph order forms relating to the children.

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

15. By reason of potential inconsistency between Order 5 and an existing Apprehended Violence Order protecting Y, pursuant to s 68P(3) of the Family Law Act 1975 (Cth), the Registrar of the Newcastle registry of the Federal Circuit and Family Court of Australia (Division 1) shall send a sealed copy of these Orders to:

(a) the Registrar of the Local Court of NSW at Newcastle; and

(b) the Commissioner of the NSW Police Service.

16. Within 14 days hereof the applicant and second respondent shall cause the children to be delivered to the Senior Court Child Expert at the Newcastle registry of the Federal Circuit and Family Court of Australia (Division 1) to have explained to them the effect of these orders and, if deemed appropriate by the Senior Court Child Expert, the reasons for such orders.

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

18. Any and all other outstanding applications are dismissed.

NOTATION

A. Order 5 may be inconsistent with the provisions of the Apprehended Violence Order made against the applicant for the protection of Y by the Local Court of NSW at Newcastle on 26 July 2017 (and varied on 7 September 2017), in which case Division 11 of Part VII of the Family Law Act 1975 (Cth) applies and these parenting orders prevail to the extent of any inconsistency.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Although these proceedings began as a wide-ranging dispute over the children’s residence and the allocation of parental responsibility for them, the trial culminated in a relatively narrow dispute about whether the time the children currently spend with the mother should remain the same or be changed by expansion, reduction, or elimination.BACKGROUND The mother and second respondent commenced their relationship in 2008. The eldest child was born to their relationship in 2009 and they separated shortly afterwards. The mother and the applicant commenced their relationship in 2010 and the eldest child lived with them. The younger two children were born to their relationship in 2011 and 2014. The mother and the applicant finally separated in about June 2013, when the mother was barely pregnant with the youngest child. Orders were first made in respect of the children between the parties in October 2016. On 12 October 2016, consent orders were made in respect of the eldest child, providing for her to live with the mother, for the mother to have sole parental responsibility for her, and for her to spend alternate weekends with the second respondent. The next day, on 13 October 2016, more consent orders were made in respect of the two youngest children, providing for them to live with the mother, for the mother and the applicant to have equal shared parental responsibility for them, and for the children to spend substantial time with the applicant and the eldest child. Less than a year later, in September 2017, fresh proceedings were commenced by the mother in respect of all three children. Those proceedings progressed to trial and were determined by orders made by Cleary J on 19 June 2019 (Minshall, Clayton & Anor [2019] FamCA 388). Those orders reversed the children’s residence and essentially provided for:(a)the eldest child to live with the second respondent and for him to have sole parental responsibility for her;(b)the two youngest children to live with the applicant and for him to have sole parental responsibility for them; and(c)an embargo upon the children spending any time with the mother for 12 weeks but, thereafter, the graduated escalation of their interaction with her, beginning with supervised time at a contact centre once per fortnight and culminating in unsupervised weekend visits once per fortnight. In December 2020, the mother commenced contravention proceedings against both the applicant and the second respondent which, in March 2021, resulted in findings that both the applicant and the second respondent contravened orders without reasonable excuse. Despite the adverse findings made against both the applicant and the second respondent, no sanctions were imposed upon either of them. The catalyst for the contravention dispute was the cessation of the children spending time with the mother from late October 2020. While the applicant and second respondent contended the children were resistant to spending time with the mother because she was immersing them in the parental conflict, she contended they were not trying hard enough to encourage the children to visit her.

Evidence

Evidence Before The Court

At the conclusion of the trial, just prior to the commencement of final submissions, the mother tendered an amended minute of orders.[2] Her ultimate position was that all three children should spend time with her on alternate weekends (Friday to Monday), for portions of school holidays, and on other special occasions. In the alternative, she proposed that the June 2019 orders remain in place, but be supplemented by orders facilitating her acquisition of information about the children and attendance at school functions. In either case, she implicitly accepted that the eldest child should continue to live with the second respondent and the two youngest children should continue to live with the applicant.[2] Exhibit M5.THE EVIDENCE The applicant relied upon his affidavit filed on 6 September 2021 and the affidavit of his new domestic partner, Ms DD, filed on 14 September 2021. Ms DD’s affidavit was not filed and served within the limits of past procedural orders,[3] so the mother took objection to it. The objection was overruled because the trial was pushed back by a month and so she still had plenty of time within which to consider it. As it transpired, the mother’s cross-examination of Ms DD was quite truncated, suggesting much of its content was uncontroversial.[3] Orders 2 and 3 made on 16 June 2021; Order 1 made on 19 August 2021. The mother relied upon:(a)the two affidavits filed on 3 September 2021 by her and the maternal grandmother;(b)a bundle of documents, tendered jointly with the second respondent;[4] and(c)some other tendered documents.[5][4] Exhibit A.[5] Exhibits M2, M3, M4. The second respondent relied upon his affidavit filed on 6 September 2021 and the affidavit of the paternal grandmother filed on 10 September 2021. Although those affidavits were filed slightly late, no issue was taken. The second respondent also relied upon the jointly tendered exhibit.[6][6] Exhibit A. The memorandum prepared by the Family Consultant (now called the Court Child Expert) on 21 May 2021, pursuant to s 11F of the Act, was also adduced in evidence. When the issue was raised with the parties before the proceedings were fixed for trial, none of them applied for the preparation of a more comprehensive family report by the Court Child Expert pursuant to s 62G of the Act.[7][7] Notations A and C made on 3 May 2021; Notation A made on 16 June 2021.LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

Decision

Reasons for decision

In respect of the applicant, there was a vestige of evidence for the submission,[35] but it was insufficient to satisfy the high standard required by the authorities to justify the elimination of a parent from the children’s lives. The applicant might not be coping as well as the second respondent, but the evidence fell considerably short of demonstrating he was at serious risk of losing his parenting capacity.[35] Family Consultant Memorandum para 57.CONCLUSION Although the mother abandoned her applications for the children’s residence and parental responsibility, she still apparently harbours an honest belief that the children are at risk of harm in the primary care of the applicant and the second respondent. When giving her oral evidence she said there was nothing she wished to change in her affidavit. She said she continued to doubt the truth of the evidence given by both the applicant and the second respondent. She was impelled to agree that it would be difficult for her to share parental responsibility for the children when she does not trust the other parents. The evidence comfortably rebuts the presumption for the applicant and the mother to share parental responsibility for the two youngest children and the presumption for the applicant and the second respondent to share parental responsibility for the eldest child (s 61DA(4)). In the end, the mother did not apply to disturb the orders made in June 2019, which exclude her parental responsibility for the children. The applicant will retain sole parental responsibility for the two youngest children and the second respondent will retain sole parental responsibility for the eldest child. Accordingly, the provisions of s 65DAA are not engaged. The two youngest children will continue to live with the applicant and the eldest child will continue to live with the second respondent. The mother acceded to the continuity of that residential arrangement. The order requiring the middle child to live with the applicant may contradict the terms of the Apprehended Violence Order protecting the middle child from him, which is in force until July 2022. It is impossible to be sure, because the Apprehended Violence Order was not adduced in evidence. For abundant caution, these orders will be sent by the Registrar to the State court which made the Apprehended Violence Order and to the NSW police. In accordance with the Act, these orders will be attended by a notation that the parenting orders prevail to the extent of any inconsistency. The issue then devolves to the extent of the mother’s continuing involvement in the children’s lives. Presently, the children spend time with the mother each alternate weekend, though the durations of their visits are not identical. Despite the mother’s wish to expand, or at least maintain, the frequency and duration of the children’s visits with her, the evidence points more strongly against either of those outcomes. Conversely, despite the mutual desire of the applicant and the second respondent to eliminate all visits between the children and the mother, nor does the evidence convincingly dictate that outcome.

Ratio Decidendi

Legal Principle Established

Statements made by the children to the Court Child Expert are likely to be much more reliable than statements they have made to the parents or aligned family members. Far greater probative weight attaches to the independent evidence of the Court Child Expert and independently prepared documents tendered in evidence as exhibits.PRIMARY CONSIDERATIONSSection 60CC(2)(a) There was no dispute in the proceedings that the children each enjoy meaningful relationships with their respective parents, though there was an issue about the benefit the children are liable to derive from their relationships with the mother. The Court Child Expert said this about the retention of the children’s relationships with the mother:68.Given concerns about the psychological impact of the mother’s behaviour on the children, and the impact of ongoing parental conflict and litigation on the parenting capacity and emotional/financial resources of [the applicant] and [the second respondent], the proposals of [the applicant] and [the second respondent] would appear to be in the children’s best interests. While the children will experience loss in relation to the mother, their positive developmental trajectory henceforth is dependent on them having a parenting environment which is physically and psychologically safe and nurturing. Evidently, the Court Child Expert doubts that the children can derive benefit from their relationships with the mother whilst ever they continue to respectively live with the applicant and second respondent, which residential arrangement the mother eventually conceded would continue to endure. In cross-examination, the Court Child Expert said the children’s retention of close relationships with the mother was liable to risk the stability of their relationships with the applicant and second respondent and so it was important to consider carefully what benefit the children derive from the continuity of their relationships with the mother. The Court Child Expert considered the only benefit the children derived is the ability to identify the mother as their parent, which benefit was less important than ensuring the stability of their existing residence with their respective fathers. The Court Child Expert therefore recommended consideration of the restriction, or even elimination, of the children’s current regime of visits with the mother. Such advice was couched upon a finding being made that the mother’s capacity for insight had not materially improved since the proceedings before Cleary J, which finding is made and later explained in the discussion of s 60CC(3) of the Act. I accept the expert opinion evidence of the Court Child Expert, particularly since it was not submitted her evidence should be rejected. Instead, the mother’s counsel sensibly submitted that the Court Child Expert’s evidence should be evaluated with care because her memorandum was prepared on only a preliminary basis and she did not have access to any material produced on subpoena. Cognisant of such limitations, the Court Child Expert’s evidence is still accepted as being persuasive. While the mother might not agree with the evidence, there was no rational basis upon which to reject it. The Court Child Expert’s cross-examination did not reveal any deficit in her opinion evidence.