Cousins & Peake
[2022] FedCFamC2F 1523
•5 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cousins & Peake [2022] FedCFamC2F 1523
File number(s): MLC 4941 of 2014 Judgment of: JUDGE PARKER Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – PARENTING – Review of exercise of delegated power by Senior Judicial Registrar – Interim parenting orders – Schooling arrangements Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 65DAA, 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36; (2015) FLC ¶93-637
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654
Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286
Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC ¶93-025
Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713
Number of paragraphs: 58 Date of hearing: 5 August 2022 Place: Adelaide via Microsoft Teams Solicitor for the Applicant: Appearing in Person Solicitor for the Respondent: Appearing in Person Solicitor for the Independent Children's Lawyer: Southern Family Law Counsel for the Independent Children's Lawyer: Mr Heggie of Counsel ORDERS
MLC 4941 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PEAKE
Applicant
AND: MR COUNSINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
5 AUGUST 2022
UPON NOTING THAT:
A.The orders made on 23 May 2022 were not final orders.
B.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.
BY CONSENT IT IS ORDERED:
1.That paragraphs 12 to 15 of the Orders made on 23 May 2022 by the Senior Judicial Registrar be discharged.
2.The Mother have leave to withdraw her Application to discharge the Independent Children’s Lawyer on the basis that she is granted leave to seek to reinstate that Application in the event that the Independent Children’s Lawyer is ultimately found guilty of contempt.
3.The child Y born 2010 attend S School from the commencement of 2023 if he is provided with a firm offer of enrolment by that school.
4.The parent who has the care of Y at 1:00pm on 26 August 2022 take him to sit the S School SEAL Program Exam.
5.The parties do all acts and things required to facilitate Y applying for and, if offered enrolment, attending R School from year 9.
THE COURT FURTHER ORDERS:
6.The child Y be enrolled in and attend at CC School in the event that he is not successful in obtaining enrolment at S School and the parties each do all acts and things required to facilitate such enrolment and attendance.
7.The following applications are otherwise dismissed:
(a)the Application for Review filed by the Mother on 30 May 2022;
(b)the Application for Review filed by the Mother on 18 July 2022; and
(c)the Application in a Proceeding filed by the Mother on 24 June 2022.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPOREREASONS FOR JUDGMENT
JUDGE PARKER
INTRODUCTION
The applications before the Court today are two review applications filed by the Mother on 30 May and 18 July 2022 respectively in relation to exercises of delegated judicial power by a Senior Judicial Registrar resulting in orders pertaining to parenting and schooling arrangements for the parties’ sons X, who was born in 2008 and is aged 14, and Y, who was born in 2010 and is aged 12.
There was also listed before me today an application for the discharge of the Independent Children’s Lawyer but by consent that application was withdrawn on the basis that the Mother will have the ability to seek leave to reinstate it in the event that she succeeds in a pending contempt application against the Independent Children’s Lawyer.
The Mother’s review applications set out a number of grounds in which she asserts error on the part of the Senior Judicial Registrar. As I explained to the parties, both of whom are self‑represented, a review hearing is in the nature of a hearing de novo, meaning that the interim hearing to which it relates is simply reheard, and grounds are not required to be established.
The review application filed on 30 May seeks to review orders 8 to 15 of the orders made by the Senior Judicial Registrar on 23 May 2022. At the hearing this day, orders 12 to 15, which are procedural in nature and for the most part, no longer applicable, have been discharged by consent.
The remaining orders under review provide that the children live with the Father; for X to spend time with the Mother each Sunday from 12pm to 4pm and as otherwise agreed between the parties in writing in consultation with Ms U (the family therapist) and the Independent Children’s Lawyer; and that Y spend time with the Mother each alternate weekend from the conclusion of school on Friday or 3:30pm if a non-school day until 4pm on Sunday with the weekends to alternate in accordance with what was the existing sequence; and if he wishes to do so, on the Sunday when he is not otherwise spending time with the Mother, from 12 till 4; and as otherwise agreed between the parties in writing in consultation with Ms U and the Independent Children’s Lawyer. The orders also provide for time with the Mother on special occasions.
The second review application relates to an order made by the Senior Judicial Registrar on 6 July 2022, which provides that the parties do all acts and things to enrol Y in both S School and CC School. At today’s hearing an order was made by consent for Y to attend S School if a firm offer is received and I am therefore required only to consider the alternative school to be attended by Y if an enrolment does not eventuate, which the Mother fears will be the case. Unlike the circumstances before the Senior Judicial Registrar when that schooling order was made, it no longer appears likely that this matter will proceed to final hearing before Y commences secondary school and as a result, unlike the position that faced the Senior Judicial Registrar, it’ is necessary for me to make a decision as to actual attendance and not just enrolment for the purpose of securing a position.
The Mother, in relation to the review applications, relies on her affidavits filed 16 May, 30 May and 27 June 2022, as well as Notices to Admit filed 19 and 21 May and the absence of Notices Disputing Facts in relation to those Notices to Admit. The Father relies on his affidavits filed 16 May 2022, 30 June 2022 and 18 July 2022. The Independent Children’s Lawyer relies on a case outline document which I have granted liberty to file late.
REVIEW APPLICATION FILED 30 MAY 2022 – LIVING ARRANGEMENTS
The circumstances leading up to the making of the orders under review and the hearing today are that the children have been living, at least on the face of the orders, with their Father since January of 2020. The orders providing for that were made by consent on 19 December 2019 in the context where the Mother had intended to relocate to the United States.
The Mother originally sought that the children relocate with her but ultimately did not press that application and consented to orders that had the children live with their Father, with her intention being to move to the United States without the children. Ultimately, for a number of reasons, including the COVID-19 pandemic, that did not occur and the Mother remains living in Australia.
It is not in dispute that X has not spent time with the Mother since May of this year, though the reasons for that are very much in dispute. The Mother says that the practical reality following the making of the final orders in December 2019 was that the children lived in equal or close to equal arrangement between their parents and that she remain primarily responsible for medical and like attendances. This is disputed by the Father and I am unable to make findings because this is an interim hearing and the conflicting evidence has not been tested.
The Mother seeks to substitute the orders made by the Senior Judicial Registrar with orders reflecting an equal time arrangement, which she says could occur with some oversight by the children’s psychologist Ms U. It is clear from the evidence of the parties and even, as I have said to the Mother, from her evidence alone, that this is a family experiencing extremely high conflict. There have been many disputes between the parents in relation to issues including but not limited to, school collection, appointments, education and associated matters, medical issues and there has been police involvement and intervention orders.
There are many allegations and counter-allegations apparent in the material presently before the Court. By way of example, the Father alleges mental health concerns, the Mother having an inability to control her temper, emotional volatility and erratic behaviour. Those allegations are disputed by the Mother. The Mother, for her part, alleges improper supervision and care over the children by the Father, exposure to inappropriate materials and concepts, social isolation, denigration, a pattern of alienation and undermining of what was previously a very close relationship. Those allegations are disputed by the Father. In relation to all of those allegations, I am not in a position to make findings of fact and I do not and cannot know which of those will ultimately be accepted at trial.
Both parties allege inappropriate involvement of the children in adult issues, including the dispute between them; inadequate levels of care and that the conduct of the other in relation to the dispute between them is having a deleterious impact on the children’s emotional wellbeing.
The Mother acknowledges that the parties cannot co-parent effectively, but she promotes a parallel parenting arrangement. It is not in dispute that the children have been expressing resistance in relation to time with their mother, but the Mother asserts that Y in particular truly wants more time with her and that there is a dissonance between the children’s expressed resistance and their actual experiences of time with her.
The Father says that the children’s views arise from their experiences when they spend time with the Mother and the painful interactions that they are exposed to in her care. Again, I am not in a position to make findings in relation to these issues. The Mother says that the timing of the Father’s expressions of concern about her care of the children is suspicious in that it coincides with legal developments in the dispute between the parties. The Mother says that the Father has willingly left the children in her care since the most recent orders were made, that his allegations against her arose in the context of family law processes commencing, and that I need to consider those allegations in that context.
The Mother asserts that the amount of time provided for in the orders under review is manifestly inadequate to meet the children’s best interests or to support a normalised relationship between her and the children. She submits that, at some point, as she put it, the Band-Aid needs to be ripped off and that rather than a cautious approach to re-introduction of the relationship being taken, the Court should take the leap, otherwise it might be too late. In my view, a decision that can be described as “ripping off a Band-Aid” is unlikely to be a decision that is appropriate to be made at an interim hearing on the basis of untested evidence.
The Father’s case, in summary, is that an equal time arrangement would expose the children to risk of emotional trauma. He seeks that the review application be dismissed.
The Independent Children’s Lawyer seeks that the review application be dismissed and that the orders of 23 May 2022 remain in place. Her position, as expressed through her Counsel, is that there are emotional concerns in relation to the children’s relationship with their Mother, which is being dealt with and worked on via their therapist and that imposing additional time is likely to be counter-productive at this time and could cause irreparable damage. The Independent Children’s Lawyer says that care and a cautious progress is warranted.
I am required by section 60CA of the Family Law Act 1975 (Cth) to have regard to the children’s best interests as the paramount consideration. It is well established, as I have explained to the parties a number of times during the course of this hearing, that where evidence is untested at an interim hearing, findings of fact cannot be made and the process of inquiry is necessarily curtailed.[1]
[1] Goode & Goode[2006] FamCA 1346; (2006) FLC ¶93-286 at [68].
However, as emphasised by the Full Court in a number of authorities, the fact that evidence has not been tested does not mean that it can be ignored, and the likely impact on the children of each available course of action, if the evidence is ultimately accepted, must be taken into account.[2] The task I must undertake is to have regard to any uncontested facts and the state of the evidence before the Court and balance any risks apparent on the evidence in determining the arrangements that will meet the best interests of the children, pending a proper hearing.
[2] For example, Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654 and Salah & Salah [2016] FamCAFC 100; (2016) FLC ¶93-713.
The Full Court in Goode & Goode[3] set out the pathway to be followed in interim parenting decisions. Section 69ZL of the Family Law Act, which was enacted after Goode & Goode, makes provision for short form reasons in interim parenting matters and I give these reasons in short form but it should not be taken that I have not had regard to all of the evidence and submissions before the Court and all of the required legislative criteria.
[3] [2006] FamCA 1346; (2006) FLC ¶93-286.
If an order provides or is to provide for the parents of a child to have equal shared parental responsibility for the child, I am required by section 65DAA of the Family Law Act to consider whether equal time is in the best interests of the children and reasonably practicable and if that inquiry is answered in the negative, to undertake the same consideration in relation to substantial and significant time. There is, in this case, an order for equal shared parental responsibility as part of the orders made on 19 December 2019, which remains in force, and those considerations therefore apply. Given that the Mother’s case is for equal time, part of considering the parties’ positions is to give consideration to those issues.
In determining the children’s best interests, I am required to have regard to the factors set out in section 60CC of the Family Law Act, although as the Full Court held in Banks & Banks,[4] it is not necessary at an interim hearing to expressly consider each and every factor and I will limit my consideration to those I have assessed as most relevant to the facts and circumstances in this case.
[4] [2015] FamCAFC 36; (2015) FLC ¶93-637.
There are two primary considerations in section 60CC(2), being the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Both of these factors have significance in the present case.
The Mother’s case is based on the need to maintain a meaningful relationship and the Father’s case and that of the Independent Children’s Lawyer are based on the need to protect the children from emotional harm. Subsection (2A) provides that greater weight must be given to the need to protect children from harm when those two primary factors conflict.
Subsection 60CC(3) sets out a number of additional considerations. Those most relevant to the present matter are:
Any views expressed by the child and any factors such as the child’s maturity or level of understanding the Court thinks are relevant to the weight to be given to the views
The Independent Children’s Lawyer has met with the children and has informed the Court that both children reported feeling psychologically and emotionally unsafe in the Mother’s care and that they referred to multiple incidents giving rise to their concerns. That information was before the Court when the matter was before the Senior Judicial Registrar.
The Mother’s case is that the views expressed by the children are a result of undermining and alienating conduct by the Father. I am not in a position to make findings in relation to that.
Counsel for the Independent Children’s Lawyer provided an update to the Court this day to the effect that Y has expressed a recent view of contentment with the current arrangements.
The Mother says that the children are not of a state of maturity such that they can properly understand the long-term ramifications of the views that they express. That might be so, but the children, at 12 and 14, are of ages where their views certainly must be taken into account and given some weight by the Court.
The nature of the relationship of the child with each of the child’s parents.
Of particular significance in this case is the nature of their relationship with their Mother. It appears, based on the evidence before the Court, that there has been some breakdown in that relationship and the causes for that breakdown are very much in dispute.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, spend time or communicate with the child
The current care arrangements came about as a result of the Mother’s proposal to relocate to the United States, which ultimately involved her deciding to relocate without the children. It was on the basis of that intention that she consented to an order that the children will reside primarily with their Father. Regardless of the circumstances that led to the Mother making those decisions at that point, the reality is that there has been, at least on the face of the orders, a period of two and a half years during which the children have been in the primary care of their father. The decision made this day must take that context into account.
The likely effect of any changes in the child’s circumstances, including separation from family members
The children have already experienced a significant upheaval, being a change of care from living with the Mother to living with the Father, albeit that the Mother says that the practical reality of what occurred during 2020 and 2021 was more akin to a shared care arrangement.
The change that they experienced occurred in circumstances in which the children expected that their mother would move overseas and they have been in their current arrangement for a period of two and a half years, at least in terms of the orders in place.
The Mother seeks what would, on the Father’s case, be another change, being a switch to a shared care arrangement. Certainly in recent times, the children have not been in a shared care arrangement and so a change to such an arrangement would, on any party’s case, be a change.
In my view, implementing a further significant change would likely be disruptive to the children’s routine. Although the Mother says that the shared care arrangement was already in place, this evidence is disputed and untested and I must be guided by the objective contents of the final orders made in December 2019.
Although the change promoted by the Mother would not involve separation from either parent, it would involve yet another change – at least from the present circumstances – and on an interim basis with the potential consequence of yet another change if the Father succeeded at trial. Multiple changes to the children’s living arrangements are unlikely to serve their interests in the short or long term.
The capacity of each of the parents to provide for the children’s needs, including their emotional and intellectual needs
Each of the parties alleges serious deficits in the parenting of the other. I am not in a position to make findings in an interim stage in relation to either of the parties’ allegations. At the very least, however, it is clear that the very high level of conflict between them suggests that one or both parents are struggling to promote the children’s emotional needs over the dispute between them. The evidence does not support an interim change to the children’s living arrangements based on the allegations and counter-allegations made by the parents.
I am required to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
The very high level of conflict in this case suggests a poor attitude by one or both parents in this regard and at an interim hearing, I am not in a position to make findings beyond that. Without the evidence having been tested, it is not possible to discern the extent to which this will impact on the orders to be made at a final hearing. This suggests that, at an interim stage, a cautious approach is warranted.
Any other fact or circumstance the Court considers relevant
The most compelling circumstance in this matter, in my view, is the fierce and entrenched conflict between these parties and the likely impact this will have on the children. It is likely (although I cannot make findings) that the conflict between the parents has played a significant role in the emotional difficulties presently being experienced by the children. Parties who are in high conflict do not communicate well and who cannot cooperatively co-parent are unlikely to be able to implement a shared care arrangement in a manner which serves the children’s best interests.
On the Mother’s evidence alone, the parties have engaged in conflict about almost every conceivable aspect of the children’s lives and upbringing and there have been altercations and at times, police involvement. It is clear, again just from the Mother’s material alone, that she does not consider the Father to be a competent parent or have faith in his parenting capacity.
It would appear that there is no reasonable prospect of these parties implementing a shared care arrangement without endangering the children’s welfare by exposing them to further harmful conflict and dispute, notwithstanding the Mother’s proposal for a parallel parenting arrangement.
The Mother is very focused on the dispute between the parties, as evidenced by her numerous applications, including multiple contempt applications. Bringing those applications is, of course, her right, but her focus on the dispute rather than on cooperative parenting and improvement of the co-parenting relationship does not bode well in terms of the prospects of successful implementation of a shared care arrangement. This is all the more so in circumstances where the children are already suffering emotional difficulties and expressing resistance to changes in their arrangements. In light of these considerations, I am not satisfied that an equal shared care arrangement is in the children’s best interests at this time.
Significant concerns have been raised by the children themselves about the care provided by their Mother on the evidence available before the Court. The Mother alleges that the views have been influenced by the Father but that is a trial issue and it is not a matter that can be determined at in interim hearing. There is a risk, on the available evidence, that increasing the amount of time spent with the Mother above the level provided for in the current orders, would cause the children emotional harm. I do not know whether that is the case because I am not in a position to make findings, but I must have regard to the risk and a cautious approach is warranted. Weighing all these factors, including but not limited to the extremely high conflict levels, the children’s expressed views and the risk of emotional harm to them, I am satisfied that the arrangements as set out in the current orders serve the children’s best interests, pending full exploration of the issues at a final hearing.
As a result, save for the orders already made by consent, the first application for review is dismissed. I will, however, make a notation to the orders made this day to make clear that the orders of 23 May 2022 were not final orders. The Mother makes clear in her material that that is a point of some confusion. It is not clear from the face of those orders that they are not final orders and the Mother says, rightly, in my view, that schools and other organisations might be confused by that.
REVIEW APPLICATION FILED 18 JULY 2022 - SCHOOLING
X currently attends R School and there is no dispute that he will continue to do so. Both parties agree to Y attending the same school if he is admitted, which would be the case from year 9. R School is a select entry school.
Y is due to commence secondary school in 2023. An order was made by consent at the hearing today that Y attend S School is he receives a firm offer of enrolment from that school. The Mother has some concerns about whether that will be the case, as her evidence is that neither of the parties lives within that school’s catchment zone and she informed the Court today that based on her discussions with the principal of S School, it is unlikely that an offer would be made to a child who lives outside the catchment zone. The dispute before me then is where Y attends for secondary school if he does not receive a firm offer of enrolment from S School.
The Mother’s proposal is for Y to attend DD School, which is a school where she says her partner’s children and other friends of Y’s attend. The Mother’s case is, in relation to convenience issues, that the Father already takes X to or arranges for him to be taken to Suburb EE as part of his daily journey to R School, which is in Suburb FF, and that any inconvenience to the Father associated with arranging or taking Y to the same location would be minimal. The Mother provides evidence of curricular and extra-curricular benefits at DD School, which she says that would suit Y’s particular needs and support his educational progress.
The Father’s proposal is that if the S School enrolment does not eventuate, Y attend CC School, which is where X attended prior to his commencement at R School. The Mother says the ATAR ratings at CC School are lower than at DD School. She says that the Father has taken minimal interest in the children’s schooling in the past and is motivated by his own convenience. I am not in a position to make any findings in relation to the allegation of his involvement in the children’s schooling. It is not in dispute that CC School is more convenient to the Father and DD School is more convenient to the Mother. The Mother resides in Suburb GG and the Father in Suburb HH.
The Father says that CC School has the benefit of being close to his home, that the school is attended by the other children in his household, and (if he succeeds in relation to the issue of parenting time) given that the children’s primary residence is with him and the Mother would be doing only a single pick-up per fortnight, this is a weighty consideration. The Father says that the Mother’s proposed school is double the driving time for him and he urges the Court to take into account that he has in his household five children for whom he needs to manage drop‑offs and make arrangements. He says CC School is a high performing school. The Mother says that the family’s difficult family law history tainted their experience and reputation at CC School during the period while X attended there and that it would be preferable for Y to have a fresh start by starting at a new school.
There have been orders made by consent in relation to the parties’ facilitation of additional issues such as Y’s application to R School and also his application for involvement in the SEAL program available at S School.
The Independent Children’s Lawyer supports Y’s enrolment at CC School, for which the primary school currently attended by Y is a ‘feeder school’.
The Senior Judicial Registrar’s orders did not in fact decide the schooling issues but rather, held the option open for ultimate attendance at one of the schools preferred by the Father as part of the final hearing, which was scheduled to take place prior to Y’s commencement of secondary school. Given the numerous factual issues and disputes in this matter which cannot be determined on an interim basis, this was, in my view, an entirely appropriate action to take in the circumstances that were facing the Senior Judicial Registrar where there was a trial listed to take place before the commencement of the school year. However, it would now appear that the trial is very unlikely to proceed as originally planned in November 2022 because there are a number of contempt applications before the Court which need to be dealt with before the trial can proceed. It is therefore necessary that issues of school attendance and not just enrolment be determined today.
The relevant authorities, in particular Re G: Children’s Schooling[5], make clear that where there is a dispute about the school a child is to attend, there is no legal presumption in favour of the parent with whom the children reside, but that is not to say that the reality of the children’s residence arrangements is of no relevance. Ultimately, the question is the children’s best interests. In the present case, pursuant to the orders of the Court, the Mother will do one school pick-up per fortnight; the balance will be done by the Father.
[5] [2000] FamCA 462; (2000) FLC ¶93-025.
It is not only a matter of convenience to the parties but to Y himself who will need to travel the distance between the Father’s home and his school every day. This is a downside for Y of the Mother’s proposal, irrespective of whether the Father does, as asserted by the Mother, already arrange for X to attend Suburb EE each day. On the Mother’s proposal, Y himself will need to travel from Suburb HH to Suburb EE each day, whereas the distance Y would need to travel on the Father’s proposal is significantly less.
Most significantly, in my view, the Father’s proposal involves Y being at a school where his peers, friends and social and extra-curricular networks are likely to be based around an area close to where he lives. At least pursuant to the interim orders, Y will be residing for the majority of the time in the Father’s household. It is not known whether that will change at the trial.
Even if the Mother succeeds at trial, on the basis of her current application before the Court, it would appear that Y would be living in the Father’s household half of the time. This is a factor which weighs in favour of the Father’s proposal, particularly given that if the parties hope that the immediate schooling arrangements will be in place for only a period of two years until Y commences at R School. As the number of applications currently before the Court would suggest, it is quite possible that the interim arrangements would remain in place for a considerable proportion of the two years for which I am making a decision in relation to Y’s schooling.
As a result, I will make the order that the child Y be enrolled in and attend at CC School in the event that he is not successful in obtaining enrolment at S School.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 5 August 2022
0
5
1