Collingwood & Collingwood (No 3)

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Federal Circuit and Family Court of Australia

(DIVISION 1)

Collingwood & Collingwood (No 3) [2022] FedCFamC1F 388

File number(s): BRC 6830 of 2017
Judgment of: HOGAN J
Date of judgment: 31 May 2022
Catchwords:

FAMILY LAW – PARENTING – Where the children are aged 15 and 11 – Where the mother has always been the children’s primary carer and responsible for managing their health and education – Where the children have always been home-schooled – Where the mother has exposed the children to her negative views of the father – Where it is unlikely the mother will support the children having a relationship with the father – Where the mother has not complied with previous orders for the children to spend time with the father – Where the mother alleges the father perpetrated family violence towards her and the children – Where the mother has struggled with a physiological dependence on prescription medication – Where the mother’s evidence has to be approached with significant caution – Where the father’s post-separation parenting is largely untested – Where the father is more likely to accept recommendations made by therapists and experts – Where the father is more likely to support the children having a relationship with the mother.

FAMILY LAW – PROPERTY SETTLEMENT – Where the father contributed real property – Where the mother is the only party who has received the benefit of the funds obtained from the sale of the real property owned by the father at the commencement of cohabitation – Where the father will be primarily responsible for the care of the children – Where it is unlikely the mother will make any direct financial contribution to their future financial support.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10

Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48

Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64

Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49

Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC
93-143; [2003] FamCA 395

Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morden & Coad [2019] FamCAFC 233

Pastrikos and Pastrikos (1980) FLC 90-897; [1979] FamCA 56

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

U v U (2002) 211 CLR 238; [2002] HCA 36

Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101
Division: Division 1 First Instance
Number of paragraphs: 289
Date of hearing: 8, 9, 10, 11, 12, 22, 23, 24, 25 & 26 November 2021; 24 January 2022; 17 March 2022; 13 April 2022
Place: Brisbane
Counsel for the Applicant: Ms Chekirova
Solicitor for the Applicant: A P…
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Details
Case
[2022] FedCFamC1F 388
Decision Date

CaseChat Overview and Summary

Collingwood & Collingwood (No 3) involved a dispute between the parents, B and the mother, over the best interests of their children, C and D. The children were subject to the jurisdiction of the Family Court of Australia, which was responsible for determining the appropriate parenting orders. The case presented complex issues surrounding the children's education, health, and overall well-being, given their unique needs and circumstances.

The primary legal issues the court had to address were the determination of the most suitable educational environment for the children and the development of appropriate parenting orders. The court had to consider the evidence presented regarding the children's interactions with the education system, their medical and therapeutic needs, and the capacity of both parents to meet these needs. Furthermore, the court needed to assess the mother's credibility, as well as the allegations of domestic violence made by the mother against the father.

In delivering its judgment, the court carefully examined the evidence and found that the state of the evidence did not provide a clear understanding of the children's baseline functioning. Consequently, the court directed a Registrar to forward a copy of the reasons to the Director-General of the Queensland Department of Education for urgent consideration of systemic issues related to the children's educational experiences. The court also outlined its approach to assessing the evidence, including the acceptance of opinions provided by assessors, while acknowledging the mother's potential inaccuracies in recounting events.

The court ultimately determined that the best interests of the children would be served by issuing specific parenting orders. These orders would provide for the children to live with their father, subject to certain conditions, and would require the father to ensure that the children receive appropriate educational support and access to therapeutic services. The court also made orders in relation to the mother's capacity to parent the children and her role as their tutor.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Whilst answers to these questions may well already exist, the state of the evidence before me in this case is such that they remain unanswered insofar as these children are concerned. It is for this reason that I have determined that it is appropriate and in the children’s best interests to direct that a Registrar of the Court forward a copy of these Reason to the Director-General of the Queensland Department of Education for urgent consideration of the systemic issues surrounding the manner by which these children have interacted with the education system in this state.Initial comments about the children, these Reasons (including the Schedules) and matters to be considered in assessing aspects of the evidence As raised during the course of the proceedings on multiple occasions and as already noted, one of the significant difficulties in this case lies in attempting to ascertain the components of each child’s “baseline” functioning. I regard this as one of the fundamental aspects of the determination of those parenting orders which are in these children’s best interests because I consider that it is only with the benefit of an appreciation of each child’s inherent capacities that the Court can best approach a consideration of the likely impact on each of them of orders that would require them to move to live, for the very first time, away from their mother’s care and, instead, be subjected to their father’s parenting regime – which would also involve them being introduced to mainstream education.[6][6]This is the term used in these Reasons, without disrespect to the home-schooling aspect of the education system, to refer to children attending physically in the classroom at a school, irrespective of whether this also involves participation in a specially designed or modified curriculum. Whilst I think it highly unlikely that the evidence before me encompasses all of these children’s interactions with various medical experts and therapists over their respective lives, what follows in these Reasons[7] is a detailed, chronological review of the relevant evidence I have about the various assessments and reviews undertaken of each of them. I have also determined it appropriate to include a similar detailed chronological review of the evidence I have about both the mother and B because, whilst he is now an adult, it is clearly established that the information about his functioning, capacity, limitations and/or disabilities (as well as those of the mother) have informed some of the assessments about each of C and D. Further, an assessment of the mother’s capacity to discharge the obligations of “tutor” to the children and otherwise parent them can only realistically occur with the benefit of an appreciation of the information available to the Court about matters pertaining to her health and functioning.[7] Which include the Schedules. So that there is no misunderstanding about how the information recounted in these Reasons and Schedules (summarised from the evidence before the Court) has been used in the determination of those parenting orders now in the children’s best interests, I record that:(a)I accept that the information recounted therein was provided by whomever is said to have provided it; and(b)where indicated in the Schedules, I accept the opinions proffered by those who have assessed the children and the mother on occasion; and(c)because of my assessment of the mother’s veracity, perceptions and capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of the information conveyed by the mother as recounted by the recipients of the same: that is, I accept that the mother said what she is reported to have said, but I do not necessarily accept that what was said (and therefore reported) was a truthful or accurate representation of what had, in fact, happened, although it may, on occasion, have accurately represented the mother’s perception of what was reported; and(d)I accept that the information recounted by the various schools at which the children have attended and the therapists (of whatever nature) upon whom they have attended has largely been the consequence of information provided by the mother to the school or the therapists; and(e)where assertions or opinions proceed on the basis of an acceptance of the existence of domestic violence in the relationship between the mother and the father (and after their November 2017 separation), the same has proceeded on the basis of an unquestioning acceptance, by those who have asserted the existence of domestic violence as a fact, of the mother’s allegations about domestic violence and without reference to the father’s denials of the same; and(f)records of the mother’s reports of being stressed or anxious or suffering PTSD or complex PTSD due to “ongoing domestic violence” and records of her assertions about other consequences asserted to have been caused by alleged domestic violence do not establish the existence of the domestic violence which the mother alleges that the father perpetrated against her and the children and, similarly, do not establish the alleged causation; and(g)assertions made by Dr L to Dr H (for example, in correspondence dated 23 April 2021) that “one of the main contributing and maintaining factors” about a child’s situation and/or presentation is “his challenging family environment and history of family violence” does not establish that either of the children was subjected, or exposed, to family violence or that there is, in fact, a history of domestic violence; and(h)assertions contained in documents maintained by the NDIS (such as the mid-2021 Plan Review reports relating to the children) to the effect that the family had been isolating “due to the complex DV situation” that they were “continuing to experience” does not establish the existence of a domestic violence situation (complex or otherwise) or the causative link implicit in such an assertion; and(i)assertions in the nature of that outlined in Dr H’s 17 July 2018 correspondence (to the effect that the father was said to have become quite emotionally manipulative), for example, are no more than a record of the mother’s report of her perception or assessment that the father had behaved in such a way; and(j)Dr L’s evidence needs to be considered with an appreciation that:(i)she has never spoken to the father or seen him interact with the children; and(ii)she approached her engagement with the mother and children on the basis of an acceptance of the premise that the father was an abusive ex-partner; and (iii)she accepted the truthfulness and accuracy of the information reported to her by the mother; and(iv)the only report provided to her was Dr H’s Mental Health Care Plan (which contained the assertion that there had been a history of violence) and her only engagement with other therapists or allied health practitioners was limited to a couple of telehealth calls she had with the children’s individual DF Service psychologists; and(v)she had not been provided with any assessments of the children’s educational progress or any document which contained recommendations about the type of schooling in which the children should engage and she was not aware of any recommendation that they attend mainstream schooling; and(vi)her understanding of the children’s routines in the mother’s household was based almost entirely upon information the mother provided to her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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