Dandridge & Dandridge
[2024] FedCFamC1F 486
•9 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dandridge & Dandridge [2024] FedCFamC1F 486
File number(s): BRC 4981 of 2022 Judgment of: BAUMANN J Date of judgment: 9 July 2024 Catchwords: FAMILY LAW – CHILDREN –Where the parents live over 150 kilometres apart – Where each parent alleges the other parent is a risk to the child emotionally – Final Orders made in the best interests of the child Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Hall & Hall (1979) FLC 90-713
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 9 July 2024 Place: Brisbane Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr M Pollock Solicitor for the Independent Children's Lawyer: ELR Law ORDERS
BRC 4981 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANDRIDGE
Applicant
AND: MS DANDRIDGE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 JULY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders be discharged.
Decision making
2.That the mother have sole decision making for all major-long terms decisions in relation to the child, X born 2014 (“the child”) and for this purpose:
(a)the mother shall advise the father by email of the decision to be made; and
(b)within fourteen (14) days the father shall reply to the mother via email advising of his views regarding the decision to be made; and
(c)the mother will consider the father’s views when making the final decision and advise the father of the decision made.
Living arrangements
3.That the child live with the mother.
4.That the mother is restrained and an injunction issue restraining the mother from relocating the child’s primary residence more than one hundred (100) kilometres of the Brisbane General Post Office.
5.That the child spend time with the father at all times as agreed between the parents in writing and failing agreement at least as follows:
(a)On one occasion each calendar month from 9.00am until 4.00pm on the first Saturday with such time to take place within one hundred (100) kilometres of the Brisbane General Post Office, for two (2) visits;
(b)Thereafter on one (1) occasion each calendar month, on the first Saturday from 9.00am until 4.00pm, and the first Sunday from 9.00am to 4.00pm, with such time to take place within 100 kilometres of the Brisbane General Post Office, for two (2) visits;
(c)Thereafter once each calendar month, on the first Saturday from 9.00am until 4.00pm on Sunday for two (2) visits with time to take place within 100 kilometres of the Brisbane General Post Office; and
(d)Thereafter once each calendar month being the first weekend of the month from after school or 3.00pm Friday until 4.00pm Sunday and each month thereafter.
6.That upon the child commencing time with his father pursuant to Order 5(d) hereof, the child shall spend time with the father for half of all gazetted school holidays as follows:
(a)For the first half of the holidays in 2025 and each alternate year thereafter; and
(b)For the second half of the holidays in 2026 and each alternate year thereafter.
Changeover
7.That changeovers on school days shall occur at the child’s school and at the mother’s residence on non-school days.
Telephone communication
8.That the child shall communicate by telephone or other electronic means each Wednesday at 6.00pm with the parent the child is not in the care of, with that parent to initiate the call and the other parent to ensure the child is available to take the call.
9.That the child shall communicate by telephone or other electronic means with the parent he is not in the care of at 6.00pm on:
(a)the father’s birthday;
(b)the child’s birthday;
(c)the mother’s birthday; and
(d)25 December of each year, being Christmas Day,
(e)with the parent the child is not in the care of to initiate the call and the other parent will ensure that the child is available to take the call.
Overseas travel
10.That upon the child’s current passport expiring the parents shall sign all necessary documentation for the child to be issued a new Australian passport and that passport is to be held by the mother until such time as requested by the parent electing to travel next on the provision of sixty (60) days’ notice of their intended travel and the passport will be delivered to the other parent within fourteen (14) days of that request.
11.That in the event either parent refuses or neglects to sign the passport application, and upon fourteen (14) days’ notice of doing so, then the signature of the refusing parent can be dispensed with and a passport will be issued in the name of the child pursuant to s 11(1)(b) of the AustralianPassports Act 2005 (Cth).
12.That either parent be permitted to take the child overseas provided:
(a)they provide the other parent, no later than sixty (60) days prior to any proposed travel, documentation evidencing the details of the proposed trip including the flight details and itinerary as well as contact details for where the child can be contacted from time to time;
(b)they make arrangements for the parent remaining in Australia to be able to speak with the child once every three (3) days they are away; and
(c)such overseas travel does not interfere with the child’s time with the other parent without their written agreement.
Exchange of information
13.That each parent shall keep the other informed of their current mobile numbers, residential address and any available email address and advise the other parent of any change thereto within seven (7) days of such change.
14.That the mother shall keep the father informed of the names and addresses of any treating medical practitioner who treats the child and authorise that practitioner to provide the father with any information in relation to any treatment of the child.
15.That in the event of childhood illness or emergency the parent with whom the child is with, contact the other parent forthwith to inform them.
Parental communication
16.That unless otherwise agreed in writing, the parents shall communicate via text message or email.
Requirements of the parents
17.That both parents be at liberty to attend all educational, extracurricular functions, events and activities the child may be involved in or to which parents are normally invited, subject always to the discretion of the school or organising activity.
18.That the father will attend upon his General Practitioner to obtain a referral to an appropriately qualified mental health practitioner to assist him with issues surrounding his relationship with the mother and his relationship with the child, and for this purpose the father shall provide the treating practitioners with a copy of the affidavit of Ms C filed 31 July 2023 and any Reasons for Judgment delivered in these proceedings.
19.That the mother shall attend upon her General Practitioner to obtain a referral to an appropriately qualified mental health practitioner to assist her with issues surrounding her relationship with the father, and for this purpose shall provide the treating practitioners with a copy of the affidavit of Ms C filed 31 July 2023 and any Reasons for Judgment delivered in these proceedings.
20.That the mother shall do all acts and things to arrange for the child to attend upon Dr B for the purpose of the child obtaining counselling in relation to his relationship with both of his parents; his progression to spending unsupervised time with the father; and any other matter determined to be relevant by Dr B, including explaining these Orders.
21.That the mother is restrained and an injunction hereby issues restraining the mother from denigrating the father to or in the presence of the child.
22.That the father is restrained and an injunction hereby issues restraining the father from:
(a)discussing any future potential time arrangements with the child unless agreed in writing with the mother;
(b)denigrating or speaking negatively of the mother; and
(c)except in the event of an emergency:
(i)causing the child to attend upon any medical or allied health professional without the written consent of the mother; or
(ii)Interfering with the child’s enrolment at D School or any other school.
Dispute resolution
23.That in the event of a further dispute in relation to the interpretation or effect of these Orders and/ or prior to commencement of any future proceedings, the parents will participate in family dispute resolution with a Relationship Centre or person authorised under s 10G of the Family Law Act 1975 (Cth).
24.That for the purposes of Order 23 hereof, the parents share equally in the cost of the dispute resolution between the parents and such cost to be paid in full prior to the commencement of the dispute resolution conference being convened.
Provision of the Orders
25.That the parties shall be at liberty to provide a copy of these Orders to:
(a)any school, education institution or care provider;
(b)any treating medical practitioner, hospital or health care provider; and
(c)any government department or instrumentality.
26.The Independent Children’s Lawyer provide to Dr B a copy of:
(a)these Orders and Reasons for Judgment delivered 9 July 2024;
(b)the affidavit of Ms C filed 31 July 2023; and
(c)the child’s Student Profile from D School for the period 27 June 2023 to 2 July 2024.
27.That the Independent Children’s Lawyer be discharged.
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 the pseudonym Dandridge & Dandridge has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
I reserve the right to settle these ex tempore reasons for grammar and the like.
X, born 2014, is now 10 years of age. He is the only child of a relationship between the Applicant father, who is aged 49 years and was born in the United Kingdom, but is now a permanent Australian resident, and the Respondent mother, who is nearly 52 years of age, who was born in Country E, but has lived in this country for many years.
The evidence is that the parents met online in mid-2007.
Thereafter, the mother came to Australia, presumably for the purpose of committing to the relationship with the father, noting they were married in early 2008.
The dispute that arises for the Courts determination is what is in the child’s best interests.
To have some understanding of how the Court has reached its conclusion in that case, it is necessary to have some understanding of the context that brought this matter before the Court.
STATUTORY PATHWAY
Before doing so, I set out the legislative pathway created by new amendments to the Family Law Act1975 (Cth) (“the Act”), which came into force from 6 May 2024.
Although the pathway is now a simpler assessment of factors to be considered, the destination is the same. Pursuant to s 60CA of the Act the best interests of the child is the paramount consideration.
Now, there are just two objects in s 60B of the Act:
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
Section 60CC provides that when determining a child’s best interests, certain things must be considered. These are set out below.
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The new amendments to s 60CC identify the importance of children with Aboriginality, which is not a factor in this case. It recognises the need to take into account parenting capacity, child’s wishes, depending on age, and very significantly, risks. Much of the history of this case has been associated with that factor. That is, whether the father presents as an unacceptable risk to the child.
MATERIAL RELIED UPON
At the commencement of this case, it is worth observing that both the mother and father were unrepresented. The father prepared his own affidavit and a Response. As the record will reveal, the Court considered whether he could rely upon a statement signed but unsworn by his 78‑year-old mother who is a resident of the United Kingdom, but who was not available for cross-examination because of her age and because she had been ill. I did not allow the father in those circumstances to rely upon that statement. In any event, it was of little probative value, in my view.
The mother’s affidavit and case outline were prepared by lawyers, and the quality of their draftsmanship was reflected in that affidavit. A large part of the affidavit contained a chronology of events, mostly critical of the father and his conduct. These events were set out in a chronological form from paragraph 71, commencing July 2017. It involved many statements allegedly made by others and/or a lay opinion of the mother about the father’s conduct.
Although Mr Pollock, Counsel for the Independent Children’s Lawyer, was correct in identifying that the father’s self-prepared affidavit was highly critical of the mother, although mostly historical, it is fair to say that the affidavit prepared by the mother, her solicitors at the time taking credit for its drafting, was highly critical of the father and mostly historical.
Father’s position
The father’s failure to file a case outline, identifying what his proposal was, was remedied by his acceptance that his amended Initiating Application filed 31 October 2023, was his position. It, in broad terms, provided for the parents having equal shared parental responsibility, as the term was then known, with an obligation to consult. The father acknowledged that the child should live with the mother pursuant to a final consent Order made on 15 August 2023.
The father’s proposed time arrangement provided for three supervised visits at a contact centre before moving, it seems, to holiday time and special occasion time. Importantly, the father’s proposal was for the time to be unsupervised after the initial three visits. I note that the Application was filed in October 2023 and that, in fact, visits had occurred after that Application was filed, occurring on an almost monthly basis, between 14 October 2023 and 7 July 2024. The notes of those visits are referred to later.
Mother’s position
The mother’s case outline filed 2 July 2024, asked the Court to make an order that the mother have sole responsibility for decision-making and that X live with her and spend no time with the father. It provided that:
c) in circumstances where [X] indicates a desire to communicate directly with [Mr Dandridge], that only telephone communication between [Mr Dandridge] and [X] be permitted;
d) that [Mr Dandridge] be permitted to send gifts to [X] on his birthday, Easter and Christmas;
(As per original)
The mother further sought what seemed to be an injunction under section 68B of the Act, that the father be “prohibited from attending at or communicating with [X’s] school, his treating medical practitioners and other professionals that may support or treat [X] from time to time.”
At the commencement of the case, the mother, as I said, unrepresented, indicated she had reflected, and as it became apparent, she was prepared to support what was then the Independent Children’s Lawyer’s position for supervised time once a month.
Independent Children’s Lawyer’s position
The Independent Children’s Lawyer filed a case outline on 5 July 2024. The orders sought on a preliminary basis, before the evidence had been heard, was, effectively, that the child would live with the mother and would spend supervised time with the father off-site, subject to agreement with the contact centre, for three hours on one occasion each month.
As is appropriate in some cases, and as was appropriate in this case, the Independent Children’s Lawyer’s position at the conclusion of the case was different than that articulated in the initial position set out in the case outline.
Annexed to these Reasons for Judgment at Appendix 1, is a copy of Exhibit 15, which is the Independent Children’s Lawyer’s final orders sought. Those orders provide for the mother to have sole decision-making for major long-term decisions in respect of the child, for the child to live with the mother and for the father to begin unsupervised time on a monthly basis, graduating after six months to include holiday time. Mr Pollock of Counsel, on behalf of the Independent Children’s Lawyer, identified that the progression would mean that the first holiday period that could occur would be at the end of term one 2025. I note that by that stage, X will be approximately 11 years of age.
CONTEXTUAL BACKGROUND
The following summary includes statements of fact which should be construed as findings of fact.
As I say, X was born to the relationship between the mother and father, which may have had some difficulties, but nonetheless, they joyfully welcomed X into their life in 2014. They separated on 7 June 2015.
The history of the care of this young child between the parents from then until the father did not return the child to the mother on or about 31 July 2017 suggests that the parents, without Court orders, sought to ensure the child spent some time with the father, although the mother was clearly the primary carer.
The evidence is the father held the child and did not return the child to the mother (although there were no orders at that time) on or about 31 July 2017. The mother proceeded to a Magistrates Court, received an order that the child reside with her and a recovery order, which was executed in mid-2017.
Thereafter, it was apparent that the parents decided to try and negotiate some longer-term orders. They did so and, on 6 August 2018, provided consent orders to the Court which made by a Registrar of the Court at the time. The Orders provided for a slightly graduating time between the child living with the mother and spending with the father, effectively reaching approximately five nights a fortnight in two blocks, from a Sunday to a Wednesday in week one and a Sunday to a Tuesday in the other week. The time was to be unsupervised.
It is apparent from all the evidence that notwithstanding this sharing of care, the father retained, and I find without significant justification, but reflective of the increasingly poor communication between the parents and lack of trust in the relationship, concerns about the mother’s parenting.
The mother’s affidavit identifies and is confirmed by documents which have been produced also by the father; that between 2018 to at least 2020, there were consistent disputes between the parties around the child’s health, preparation for his schooling and the like. The father, in fact, even took what I regard as a somewhat unusual step of engaging, unilaterally, a Psychologist called Ms F in City G, who provided a report to the father.
As the family report writer, Ms C, observed, the difficulty with Ms F’s report is that it had no real input by the mother. Furthermore, that report dated June 2022 ultimately was supported, in the father’s view, by a report he received from Mr H, a well-known report writer, in February 2022.
None of these witnesses were required for cross-examination or produced, but it is appropriate to acknowledge that the weight that could be applied to those views have not been tested and were not shaped in any way by any input from the mother, even though the father would say and did say, that the mother was invited to participate in that process.
Increasingly, therefore, the conflict between the parties was looking for a solution which, in my view, was more obvious when the father decided unilaterally, because of the cost of housing in the greater Brisbane area, to relocate to a rural town of Region J in 2020.
This was in the midst of the COVID-19 pandemic that gripped Queensland at the time. Schooling arrangements for children were in chaos. Many schools did not require for children to attend physically at school.
The father’s relocation to Region J – some two and a half hours drive from where the child was living with the mother at Suburb K (and going to the local school, D School) – created an absolute clear impracticality with the Orders made by consent in August 2018. In my view, it is mystifying why the parents, who had some level of legal advice at the time, were not focussed on finding a solution to the problem created by the father’s unilateral decision to relocate.
It was hardly surprising that tensions in the relationship were exacerbated and that the position for this young boy, who at times was being expected to attend two different schools and travel upwards of five hours every time he moved into his father’s care, did not resonate with these two otherwise capable parents in finding a practical solution. In my view, the father deserves to be criticised for creating this issue.
The father took the matter into his own hands, and even though he would say it was in the child’s interest to do so, he retained the child in his care on about 25 April 2022 and did not return the child to the mother, contrary to the Orders agreed to by consent. The mother was clearly distressed by this event, and she went to the school thereafter, which was not a happy event for the child. The child was observed to suffer some emotional deregulation on that occasion.
The father filed the current Application on 29 April 2022, seeking to ultimately change the Orders. However, when the matter came before a Senior Judicial Registrar in Melbourne on 22 July 2022, for reasons which I have not seen but I could understand, the Senior Judicial Registrar ordered that the child be returned to the mother and that a recovery order issue, if the father failed to comply, which would be executed by the Australian Federal Police or another police authority collecting the child from the father and returning him to the mother.
The child had just turned eight years of age at this stage. It is a tragedy to think that two caring parents could ever support changing the residence back to the mother, as ordered by the Court, through the agency of police. I criticised the father in not doing more to ensure that happened properly. Even though the Senior Judicial Registrar made Orders for the child to spend supervised time with the father, since July 2022 and thereafter when the child was returned to the mother’s care, no continuing telephone time or physical time between the father and the child was ordered or facilitated by the mother. I regard that as an unfortunate characteristic of the past arrangements.
There were three visits at M Consultancy consistent with the Order made 22 July 2022 (amended 25 July 2022). Those visits took place on 4 September 2022, 18 September 2022 and 2 October 2022. Exhibit 9 attaches notes from those supervised visits. It has to be said at that stage, the visits took place in the context of the emotional turmoil created by the change of residence. The father who was not coping with that event and reduction in time and shows the father in a particularly bad light. He overly involved the child in discussions about his arrangements and can clearly be seen as being negative of the mother and involving the child in the dispute. I regard it as hardly the father’s best moment.
To add to that, of course, there is the regrettable text message that the child is said to have sent to the mother from the father’s phone as set out in Exhibit 8. A parent could never comfortably allow such a message to be sent. It was likely to be, and was, distressing to the mother. However, the effect of the father’s conduct then had a very real consequence, initially, for him, and in my view, for the relationship between him and X.
Time was suspended by a Senior Judicial Registrar on 24 October 2022, consistent with some of the concerning behaviour of the father and, there was no physical time between the child and the father until visits of a supervised nature recommenced by reason of the Orders of a Senior Judicial Registrar made 15 August 2023. They began on 14 October 2023. There was a period of over 12 months where the child had no time with the father. That is a significant period of time in the life of this child and with the history of him being previously in the father’s primary care.
The issue which I will turn to shortly in these reasons was whether that absence of time had any cathartic or other effect upon the father, whose behaviour prior to the date was subject of significant condemnation. As I will soon find, I believe it has.
In June 2023, during the period where there was no time between X and his father, the Independent Children’s Lawyer retained Psychologist, Ms C, to prepare a family report. Ms C’s report dated 24 July 2024 and was filed on 31 July 2023.
Ms C was the subject of cross-examination. It is not necessary, in this case, for reasons which I will again explain shortly, to deal with all of the comments made by Ms C. However, she was concerned at that stage by the actions of the father that had occurred prior to July 2022.
As a result, her recommendations in her report were that X has one supervised visit each calendar month for two or three hours in Brisbane. She said that any time should only commence “once a final decision is made about where [X] is to live”. That issue was resolved by the parties agreeing on a final basis, before a Senior Judicial Registrar on 15 August 2023, that the child would live with the mother. As a result, this case did not involve a question as to where the child would live.
After the Orders made by the Senior Judicial Registrar on 15 August 2023, there were visits commencing, thankfully not long thereafter, at the L Children's Contact Centre. Exhibit 10 and Exhibit 14 are reports for the L Children's Contact Centre in respect of the visits that were held being:
(a)October 2023;
(b)November 2023;
(c)December 2023;
(d)February 2024;
(e)March 2024;
(f)April 2024;
(g)April 2024;
(h)May 2024; and
(i)the last most recent visit being July 2024.
Those reports reveal very positive, warm, and engaging interactions between X and his father. It reveals no comments made by the father in the presence of the supervisor that would suggest any repetition of the earlier fixation he may have had in proving that the mother was an unfit mother or less capable than she clearly presents to me to be. In that regard, I should also acknowledge, that the assessment of Ms C is that the mother parents well.
Of course, as the mother is entitled to say, those visits being supervised, why wouldn’t the father behave himself? Nonetheless, the reports reveal, in my view, the strength of relationship this child still has with the father and is absolutely consistent with his view of the father expressed by him (leaving aside his reference to a preference to live with the father) to Ms C in the family report interviews. The mother, to her credit, acknowledges that the child loves his father. She acknowledges there is no other current male role model in the child’s life other than his male school teacher this year and his current sports coach, who could be seen as a role model of the male gender.
Assessing the father now is also importantly shaped, in my view, by two other interventions by therapists. Dr B, a highly qualified Psychologist and therapist in the Brisbane region, saw the child on three occasions, although sadly she has not seen the child since March 2023. The mother explains the reasons for that as being that she was awaiting Dr B to contact her for a new appointment. She has made that appointment. In my view, Dr B, as the Independent Children’s Lawyer’s minute identifies, has a role to play in helping X understand and support him as he moves into a new regime of time with his father.
The father also undertook an engagement with a therapist, as he was ordered to do, by the Senior Judicial Registrar. I was referred to the report from Dr N, a Psychologist who practises, I think, in the City G area. Dr N’s report dated 20 March 2024 was filed in accordance with my direction under the cover of the father’s then solicitor on or about 21 March 2024. The father says that, although at the time of the report he had had four sessions with Dr N, he believes he had at least another couple of sessions. Dr N said that the father presented with a dual focus, namely:
(a)the poor parenting of his ex-partner and consequences of this on his son, X; and
(b)his continuing deep grief over the scarce contact he has had with X.
It is clear that when the father first presented to Dr N in September 2023, he was still harbouring concerns about the “poor parenting” of his ex-partner. In my view, the evidence does not justify him having those concerns. Dr N was not the subject of cross-examination. However, Dr N says that the father was able, through the therapeutic approach adopted:
…to challenge his current thinking, the story consistently tells himself and reflect that aspects of this that are unhelpful and did not prioritise [X’s] needs. He was then able to create more helpful thoughts, reframing his role, and identify the required behaviour he needed to engage with to support [X]
In the concluding paragraph, Dr N said “Overall, [Mr Dandridge] presented as highly cooperative and open to learning though his continuing grief over the lack of contact with his son is significant.”
What we know is that at the time of the report, he had begun having supervised time which has continued. The father was cross-examined, and I will turn to that aspect of his evidence shortly.
The matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia on 12 September 2023, and I listed the matter for hearing shortly thereafter. It was apparent to me then, and it has become more apparent to me as all the evidence has been filed and tested, that the trajectory of this matter through the system has not, notwithstanding the cautious approach that Courts are entitled to take, met the needs of this child in recent times, so far as his relationship with his father is concerned.
IS THE FATHER AN UNACCEPTABLE RISK TO THE CHILD?
The mother cannot fairly be criticised, in circumstances where she says she has not seen a demonstration by the father of a change of behaviour, for not feeling confident that the father’s behaviour has changed from the worst excesses of some of his behaviour as identified in the history. This is an environment where there is low trust and high conflict. There is no respectful communication taking place.
I formed the view, a position I put to Ms C, that the mother has a somewhat black and white personality. That is not meant to be a criticism. She is pragmatic. She sees things in clear terms and has strong opinions which she accepts are based, I think, on her analysis of the evidence as she saw it. She has, at least since the report of Ms C, had her view of the father supported by Ms C’s own opinions and recommendations. It was, no doubt, clear in the mother’s mind that Ms C found the father lacked parental insight. In my view, that criticism of the father in respect of actions earlier was justified at the time of the report.
However, the mother has not been able, in my view, to take on board some of the other evidence available to the Court, including the cross-examination of the father; the report from Dr N; the very positive reports from the L Contact Centre, and the father’s own evidence in the witness box, to allow herself to accept that there is any possible change in the father’s behaviour. Whilst I accept that the best example to see change in behaviour is to observe it, as the history makes clear, the father has had little opportunity other than in a supervised environment to demonstrate any change in behaviour.
In my view, however, on all the evidence, including the evidence of the father who impressed me as a witness with some reflective capacity about his serious mistakes in the past, I do not find him to be an unacceptable risk to this child.
Does that mean he could revert to past behaviour? The prospect, in my view, knowing the consequences of his behaviour in the past, are minimal.
THE MOTHER’S CAPACITY TO SUPPORT A RELATIONSHIP BETWEEN THE FATHER AND CHILD
Again, to be fair to the mother, having the benefit of the reports that have been provided and the evidence that she has amassed through the help of her very competent lawyers, she has found it impossible to get over her deep, I would say, almost entrenched belief, that the father has not changed at all. In those circumstances, it is not unusual that the mother finds it difficult to support a relationship with a man who she believes to be a risk to her son. There is no clear evidence about whether she has, in fact, taken personal therapeutic support to deal with the prospect that perhaps the father is different and orders he does now seek, could be made.
The orders that the Independent Children’s Lawyer proposes includes a requirement for the mother to seek out therapeutic support with the benefit of these Reasons. I agree.
It is likely that nothing I will say will assuage the mother’s view that the father is a risk to the child, and I say that the risk that has been identified in the mother’s material is primarily emotional risk of undermining the mother’s authority as a parent. As a result of what she says is the father’s earlier fixation with medical and other authorities giving him advice, contrary to the mother’s position, and I think at times her criticism is justified, and that affected his parenting capacity.
In that regard, I note that, as I indicated in final submissions today, that the time the child spent with the father during periods often involving some travel for a number of months did not demonstrate any profound lack of the father’s day to day parental capacity. Yes, it is true that there are periods of time when the child did not attend school in the midst of COVID-19 and the father desired to maintain schooling, either remotely or at another school. But the basic requirements of love, comfort, care, housing, clothing, non-neglectful behaviour and non-violent behaviour with the child existed. There are none of those elements raised, really, in the mother’s material, she more often identified her concern’s about the father’s attitude towards her.
With that history, it might be justifiable in explaining the mother’s clear reluctance to support a relationship with the father. This is demonstrated in other ways in this trial. The mother was invited to be generous in attributing any values that the father would offer to their son. She said he had a good sense of humour. She struggled, unlike the father who was asked the same question by the Bench, to concede some benefits that he would bring to his son.
These are parents of quite different cultures, experiences and backgrounds. The father acknowledged the mother’s intellect, attention to detail and structure. Children often benefit from different parents who parent differently, although within range. The mother’s affidavit prepared by, as I say, her solicitors, repeated that the themes were “Lack of parent capacity, undermine relationship with me, exposure to parental conflict, unilateral decision-making.”
To be fair, the mother has herself in recent times been open to criticism about some of her unilateral decision-making. I point particularly to a very serious decision, unilaterally made without consultation with the father in any way, as recently as June this year to remove the child from school for two weeks; and take the child to Country E.
Now, at first blush, people might think a holiday in Country E would be a strange holiday destination. It is not. The mother is from Country E. She was born in that country. I am happy to accept her evidence that the fact that Country E is experiencing civil unrest, does not mean that Country E is an unsafe place for a Country E mother to take her child. Nonetheless, she did not think it was necessary, because she had sole responsibility under an interim order, to even engage the father in that decision. She did not engage the father with her decision to unilaterally take the child out of school for two weeks.
She did not explain, in my view, the reasons for her failure to make the child available for the June 2024 ordered supervised visit. These are all done within the shadow of a trial due to commence before this Court on 8 July 2024. One would hope that the parties have learnt through this process, the benefits that go with proper consultation and communication.
I think there are some concerns about the mother’s capacity to support the child’s relationship with the father. However, I also take the view on all the evidence that the mother is highly committed to the best interests of her child; has in the past demonstrated, under some difficulties and provocation by the father really, continued support for the child’s relationship with the father, including the arrangements that were in place from the August 2018 Order. As a result, I am confident that the orders I make, which will be for unsupervised time, the mother will find a way to support. The reason why, in my view, she should support those orders, not merely because the Court is making them, but is because I would hope, that on reflection, she will see that the positives of the child having expanded time with the father, in circumstances which will always be much less than the time and influence she can have over the child because of him living with her, will be in the child’s best interests.
FAMILY REPORT
I did not accept the recommendations of the report writer. It has, of course, been the law, at least since cases like Hall & Hall (1979) FLC 90-713 that the Court is not bound to accept the submissions of the Independent Children’s Lawyer of a family report opinion. The Court is required to apply the law to the facts and make an order achieving the best interests of the child.
In my view, the main reasons I do not accept the opinions expressed by Ms C is that they are not, in my view, relevant and fresh to the new facts which I have had presented to me in this trial. There is, of course, always likely to be a lag between when a report writer observes children, speaks to parents and has data available to them for a report. A report writer is not a fact-finder. That is not their task. I have re-read recently the observations of the child with the father during the report interview. So, I have read the child’s express wishes. There is nothing in the data since then, and to the mother’s credit she does not say that the child is rejecting going to father or expressing any negative views about the father. All this is consistent, in my view, with her evidence that she does not speak to the child about such issues, that would give me any concerns that this child would be able to engage with the orders I propose to make.
Ms C’s opinion about the lack of insight by the father was reasonably open at the time she did her interviews in June 2023 based on the evidence before then. In my view, having had the benefit of the evidence of the father and the other evidence I have already referred to, such a view is not open on the evidence now.
CONCLUSION
The proposal of the Independent Children’s Lawyer, sensibly reshaped from the evidence, finds favour with the Court. The communication between the mother and father would need to improve before the Court could feel confident that they could make joint decisions. However, consistent with the matters raised by Kent J (as he then was) in Vallans & Vallans (2019) 60 Fam LR 193, it is a big decision to remove a parent who is spending significant time with the child from a decision-making process for two main reasons:
(a)It excludes a parent from basic decision-making about their child on major issues; and
(b)It leaves the person with the responsibility to make the decision not having any benefit of views expressed by a parent who is having significant time with the child and may see things from a different perspective.
In my view, the orders proposed by the Independent Children’s Lawyer about decision-making should include a process of consultation, but with, ultimately, the mother having the final decision. I think it is unlikely, really, that the mother will make a decision which is in any way shaped by hurting or disadvantaging the father. Schooling, medical issues or the like, I am confident that this mother will only make the best decision for X. However, the father should be consulted about any major decisions, have 14 days after which he is told of the decision to express a view through email, which the mother must consider, but then shall have the right to make the decision and communicate that decision to the father. Such an order, consistent with a number of orders made by the Court under the old legislation, does not remove the opportunity for a parent to come to the Court at any time if a decision is made which is not in the best interest of the child. History reveals that does not often occur.
FORM OF ORDERS
Spend time arrangements
The graduated time as proposed by the Independent Children’s Lawyer meets favour with the Court. It adopts, at least in part, an alternative to the parties’ positions identified by the Court during the case. It is important in my view, as we move into a new frontier of the relationship between X and his father, that X not have to deal with any anxiety or concerns that if he is in the father’s care, he will not be returned to the mother. I do not have enough evidence available to me (mostly because I have no evidence at all from Dr B) about the child’s perception of the events with changeovers, the recovery order in mid-2022 and the effect of no time with the father. That is all because, frankly, the evidence of Ms C is old, and I have no evidence from Dr B.
However, I am of the view on all the evidence that this child’s relationship with the father will be improved by him not having to navigate a concern that he will end up being at the father’s property prematurely. The mother would also hopefully draw some comfort from seeing the way the child is returned, collected and enjoyably spends time with the father, as I almost invariably predict he will. As the orders proposed by the Independent Children’s Lawyer progress, the monthly time but could take place at the father’s property in rural Queensland for a weekend. The travel is probably maintainable for that benefit and he will be returned by the father to the mother’s home. Returning the child to the mother’s home is a positive statement by the father that he supports the child living with the mother and that he is safe and well looked after in that environment. The same will occur when holidays begin.
Overseas travel
It is important that there be some structure for overseas travel. It is inevitable that the mother would want to take her child for a third visit to Country E at some stage. When parents decide to have children with a person from another country, they could hardly be surprised if that person wishes to expose the child to the culture of another country where they were born and from where they have happy memories. Even more importantly than that, this child is a by-product of an English father and a Country E mother. There is a rich heritage available to this child, probably in both countries, as well as the country of his birth, Australia. It is appropriate that there be an order in these circumstances for overseas travel and that it be regulated in the way that the Independent Children’s Lawyer proposes.
As indicated, in terms of the spend time arrangements, the order proposed by the Independent Children’s Lawyer should be amended by including that the child spend time with the father as agreed by the parents in writing and failing agreement, at least. That is to give the message to the parents that they do not have to come back to the Court every time they need to slightly alter the orders. Parents can agree to alter the orders and they should agree to alter orders in circumstances where, for example, as I explained during exchanges with the mother and father at the conclusion of the case today, an important event for the child in which the mother is involved or which the child should be present may not involve the father, but the father’s time with the child should be preserved by changing the weekends, for example.
It is a great disappointment to the Court over the period of my being a Judge that I am often confronted by people who have missed a grandparent’s birthday, a wedding, other significant family events, because orders made many years earlier did just not seem to coincide with the event that is important to the child at that occasion. Parents know, absent emergency, when things are coming up and they should communicate about that, and they should be open to changing a weekend if that is in the best interests of the child, but it is important, in my view, that the structure of these orders which provide for monthly time increasing to a full weekend and holidays be maintained.
Therapeutic assistance
The Independent Children’s Lawyer proposed at order 15 that the father will obtain from his General Practitioner a further mental health plan and to provide that practitioner with the family report of Ms C and my Reasons. It is important they have my Reasons because, whilst not being critical of Ms C, I have made assessments based on all the evidence at a later point in time. The mother is required to do similarly.
I think it is of benefit for these parties to get some therapeutic assistance. It has been a harrowing journey for them. It has cost them money. It has cost them emotional angst. It has distracted them from the core responsibilities of being a parent. They are both, in my assessment, capable of doing better in the future, being more generous to the other parent and more accepting of the important role each of them have in the life of their child. Having therapeutic evaluation and consultation may assist these people in doing so.
It is important that Dr B be provided with a copy of these Reasons. X should have these orders explained, but not in a context of one of the parents being a winner or a parent being a loser. That is so often the perspective a parent who is being engaged in litigation takes with them from a battle of this nature. I have every confidence that Dr B will, without me so ordering, ensure that X knows how the parents are now going to support his relationships into the future, reflected by these orders.
The mother indicated, I think, that her next appointment is in July 2024. These Reasons will be published and the orders available before that date. That appointment can, therefore, be taken. I want the Independent Children’s Lawyer to provide to Dr B a copy of these Reasons once settled and the family report of Ms C. If Dr B believes it is appropriate that the father be involved in a future counselling session with her and X (not couples counselling which I do not think Dr B would be interested in doing), then the father would be well-advised to make the effort to be available, at his cost, to attend that.
I see Dr B as the person most likely to provide independent therapeutic support to X, and I think that is important. I can understand why the mother, confronted with the school reports, behavioural reports, if you like, which were tendered to the Court as Exhibit 11, would be concerned. I must say, in the scheme of a child’s behaviour that I often have to assess, his behaviour at school is at the lower end of unruliness. I am not confident necessarily that it is because of anything the father has done, nor am I absolutely certain it is because he has been missing seeing his father. They could all be contributors, but I think both parents will agree that misbehaving at school and being an only child, not having to effectively share anything or accommodate other children’s wishes or needs, can create an environment where a child can be so easily isolated by his peers and social connections when he plays sports or activities which are not team-based, that can only sometimes, in the Court’s experience, discourage the child from challenging parts of his behaviour which are perhaps a little less accepted by his peers.
This child, it seems to me, on all the evidence, has the potential, because of his heritage, his parenting; and the rich background historically in his life, to reach his potential. Whether it is as a sportsperson or something else, I do not know, but Dr B should be provided with a copy of the recent school profile and the parents must jointly assist him in behaving better at school. It is simply not acceptable, and these parents should not accept his misogynistic comments towards girls or even hitting another child with a hat, but there might have been something more about that. We do not know.
CONCLUDING REMARKS
The history of this matter has meant that until a trial, as is so often the case, the father has not had to really confront his thinking about the mother and the history of the relationship, and the mother has not really had to confront the effect of the father’s past inappropriate actions. It is not ideal for parents from different cultures, without perhaps a totally committed relationship, to separate when their child is 12 months old and then try to co-parent in some way with poor communication and lack of respect. The fact that the child has got this far without significant mental health challenges says something to me about the resilience of this little boy, but parents should not necessarily accept that will always be the case.
There are enormous stresses upon young children developing in both the school and social environment we now live in. They need to be able to draw comfort from their parents, knowing that, although they may have a slightly different perspective or solution to a problem, that his best interests is at the forefront of any advice they give.
I would hope the parents communication will improve. It should start with respectful exchanges of information, perhaps by email after a visit, after something has gone well at school or encouraging the child to make a telephone call outside the hours set by the orders because he has something important he wants to share with his father or, if he is in his father’s care, with his mother. These simple strategies for children help them to understand that, although he is absolutely aware his parents are separated and probably do not like each other; that live in different parts of the country and come from different parts of the world, nonetheless, they are absolutely committed as his parents to his best interests. If that can be achieved in this case, I would have some confidence that it will not be back before the Court.
The orders that are set out at the commencement of the Reasons are in the best interests of X.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 26 July 2024
APPENDIX ONE
1.All previous parenting orders be discharged.
Decision Making
2.The mother have sole decision making for all major-long terms decisions in relation to the child X born 2014 ("the child").
Lives with
1.The child to live with the mother.
Spend Time
2.The child to spend time with his father:
(a)Once each calendar month from 9am to 4pm on the first Saturday, time to take place within 100km of the Brisbane GPO, for 2 visits;
(b)Thereafter once each calendar month, on the first Saturday from 9am to 4pm, and from 9am to 4pm Sunday for 2 visits with time to take place within 100km of the Brisbane GPO;
(c)Thereafter once each calendar month, on the first Saturday from 9am to 4pm Sunday for 2 visits with time to take place within 100km of the Brisbane GPO
(d)Thereafter once each calendar month being the weekend of the month from after school or 3pm Friday to 4pm Sunday;
3.Upon the child commencing time with his father pursuant to Order 2d hereof, the child shall spend time with the father for half of all gazetted school holidays as follows:
(a)For the first half of the holidays in 2025 and each alternate year thereafter; and
(b)For the second half of the holidays in 2026 and each alternate year thereafter.
4.The child shall communicate by telephone or other electronic means each Wednesday at 6pm with the parent he is not currently staying with.
(a)That for the purpose of the above order the parent he is not residing with shall initiate the call and the other parent will ensure that the child is available to take the call.
5.That the child shall communicate by telephone or other electronic means with the parents he is not with at 6pm on:
(a)Christmas Day;
(b)The Child’s Birthday; and
(c)The mother or father’s birthday as the case may be; and
(d)Mother’s Day or father’s day as the case may be.
6.Changeovers that do not take place at school shall take place at the mother’s residence.
Overseas Travel
7.That upon the child’s current passport expiring the parents will sign all necessary documentation for the child to be issued a new Australian Passport and that passport is to be held by the mother until such time as requested by the parent electing to travel next on the provision of 60 days’ notice of their intended travel and the passport will be delivered to the other parent within fourteen (14) days of that request; and
8.That in the event that either parent refuses or neglects to sign the passport application, and upon 14 days’ notice of doing so, then the signature of the refusing parent can be dispensed with and a passport will be issued in the name of the child pursuant to s11(1)(b) of the Passports Act 2005.
9.That either parent be permitted to take the child overseas provided they:
(a)Provide the other parent, no later than sixty (60) days prior to any proposed travel, documentation evidencing the details of the proposed trip including the flight details and itinerary as well as contact details for where the child can be contacted from time to time;
(b)Make arrangements for the parent remaining in Australia to be able to speak with the child once every three (3) days they are away;
(c)Provided that such overseas travel does not interfere with the child’s time with the other parent without their written agreement.
Information
10.That each parent shall keep the other informed of their current mobile numbers, residential address and any available email address and advise the other parent of any change thereto within 7 days of such change.
11.That the mother shall keep the father informed of the names and addresses of any treating medical practitioner who treats the child and authorise that practitioner to provide the father with any information in relation to any treatment of the child.
12.That in the event of childhood illness or emergency the parent with whom the child is with, contact the other parent forthwith to inform them.
Parent communication
13.That unless otherwise agreed in writing the parents shall communicate via text message or email.
Parent Responsibilities
14.That both parents be at liberty to attend all educational, extra curricular functions, events and activities the child may be involved in or to which parents are normally invited, subject always to the discretion of the school or organising activity.
15.That the father will attend upon his GP to obtain a referral to an appropriately qualified mental health practitioner to assist him with issues surrounding his relationship with the mother and his relationship with the child and for this purpose the father shall provide the treating practitioners with a copy of the Affidavit of Ms C filed 31 July, 2023 and any reasons for judgment.
16.That the mother shall attend upon her GP to obtain a referral to an appropriately qualified mental health practitioner to assist her with issues surrounding her relationship with the father and for this purpose shall provide the treating practitioners with a copy of the Affidavit of Ms C filed 31 July, 2023 and any reasons for judgment.
17.That the mother shall do all acts and things to arrange for X to attend upon Dr B for the purpose of X obtaining counselling in relation to his relationship with both of his parents, his progression to spending unsupervised time with his father, and any other matter determined to be relevant by Dr B.
(a)That for the purpose of the above order the mother shall provide Dr B with a copy of these orders, any reasons for judgment and a copy of the family report of Ms C dated 24 July 2023.
18.The mother is restrained and an injunction issue restraining the Mother from:
(a)Denigrating the father to or in the presence of the child
19.The Father is restrained and an injunction issue restraining the Father from:
(a)discussing any future potential time arrangements with the child unless agreed in writing with the mother; and
(b)Denigrating or speaking negatively of the Mother; and
(c)Except in the event of an emergency, the father is restrained from causing the child to attend upon any medical or allied health professional without the written consent of the mother.
(d)Interfering with the child’s enrolment at D School or any other school.
Dispute Resolution
20.That in the event of a further dispute in relation to the interpretation or effect of these orders and/ or prior to commencement of any future proceedings, the parents will participate in Family Dispute resolution with a Relationship Centre or person authorised under Section 10G of the Family Law Act 1975 (Cth).
21.That for the purposes of the above order, the parents will share equally in the cost of the dispute resolution between the parents and such cost to be paid in full prior to the commencement of the dispute resolution conference being convened.
Provision of Orders
22.That the parties shall be at liberty to provide a copy of these orders to:
(a)Any school, education institution or care provider;
(b)Any treating medical practitioner, hospital or health care provider;
(c)Any government department or instrumentality.
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