Daniel & Coupe

[2021] FamCA 134

FAMILY COURT OF AUSTRALIA

Daniel & Coupe [2021] FamCA 134

File number(s):	BRC 9043 of 2020
Judgment of:	BAUMANN J
Date of judgment:	4 February 2021
Catchwords:	FAMILY LAW – CHILDREN – where the mother unilaterally ceased time between the child and the father –interim orders made for the child to spend weekend time with the father.
Cases cited:	Rice & Asplund (1979) FLC 90-725
Number of paragraphs:	28
Date of hearing:	4 February 2021
Place:	Brisbane
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Logan Chomley Family Law

ORDERS

BRC 9043 of 2020

BETWEEN:

MS DANIEL

Applicant

AND:

MR COUPE
Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS:

1.That Orders 3(a)a and 3(b)b of the Orders made 9 October 2019 in previous proceedings BRC11778/2015 are suspended.

2.That the child, X born … 2014 (“the child”) shall spend time with the father at all times agreed but at least as follows:

(a)Sunday, 7 February 2021 from 9.00am to 5.00pm;

(b)Sunday, 14 February 2021 from 9.00am to 5.00pm;

(c)Sunday, 21 February 2021 from 9.00am to 5.00pm;

(d)from 9.00am Saturday, 27 February 2021 to 5.00pm Sunday, 28 February 2021; and

(e)from 9.00am Saturday, 6 March 2021 to 5.00pm Sunday, 7 March 2021.

3.That unless otherwise agreed, changeovers shall occur at B Church car park in Suburb C.

4.That during changeovers, the parents shall treat each other with courtesy and not engage in parental dispute or discussion of parental issues at that time in the presence of the child.

Independent Children’s Lawyer

5.That the child be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.

Child Inclusive Conference

6.That the parents and the child shall attend an appointment with Family Consultant, Mr D or such other Family Consultant as nominated by the Senior Family Consultant of the Family Court, Brisbane, with the mother and child to arrive at 9.00am on 25 February 2021 and the father to arrive at 10.00am on 25 February 2021 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.

7.That pursuant to s.11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:

(a)identification of the issues for the child;

(b)a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the child until there can be further investigations into the matter; and

(c)such programs as may assist the parties establish a better functioning co-parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills.

8.That the Family Consultant is to prepare a brief written report.

9.That the Family Consultant shall have leave to inspect any subpoenaed documents.

10.That the parties shall ensure the attendance of the child upon the Family Consultant if considered appropriate by the Family Consultant.

11.That the Family Consultant and the parties shall have liberty to approach the Associate of the Judge to list the matter for any further directions and for that mention the Family Consultant shall have leave to appear via the telephone.

12.That these proceedings be adjourned for Case Management Hearing at 9.30am on 8 March 2021 in the Family Court of Australia at Brisbane.

13.That the father’s solicitor be granted leave to photocopy the documents produced from Ms F by way of subpoena.

14.That any impediments under Rice & Asplund (1979) FLC 90-725 are overcome.

15.That the father be at liberty to apply.

IT IS NOTED:

A.That it is requested that Legal Aid Queensland give favourable consideration to the appointment of Ms Amanda Smerdon as the Independent Children’s Lawyer in these proceedings given her previous involvement with this family.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniel & Coupe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. After a long history of conflict that has spanned many years the mother, Ms Daniel, who is now aged 33 years and the father, Mr Coupe, who is now aged 39 years entered into final consent Orders with the assistance of an Independent Children’s Lawyer on 9 October 2019.  The Orders were shaped by concerns each party had raised against the other, dealt with, in some ways, by a family report of Ms H that was filed on 6 April 2018.  As a result of that report, the parties were the subject of psychiatric assessment by Dr G and his report filed 8 October 2019 was also available to the parties and to the Court when Orders were made on 9 October 2019.

2. I accept at the time of the Orders the mother was unrepresented as she is now.  The father was unrepresented also at the time of those Orders according to the records, but, as I say, there was an Independent Children’s Lawyer.  A matter which was of significant moment to the parties and which, it is clear in my view, was a major issue of conflict, was that the mother who is a native of Country J had wished to relocate back to her homeland for understandable reasons.  It was in fact the Application for relocation that had caused the Federal Circuit Court of Australia, in which the proceedings had initially been commenced, to transfer the matter to the Family Court of Australia and, ultimately, found its way into the trial pool. 

3. I of course, do not know how the mother, who is clearly an intelligent lady but English is not her first language, I accept, interpreted the expert evidence of Ms H or that of Dr G before she consented, as I believe she did voluntarily, in the making of the Orders of 9 October 2019.  It should be noted, of course, that Ms H opined in her recommendations that X effectively not move and live in Country J.  I can only assume the mother took that recommendation into account.  At paragraphs 129 and 130 of the family report, which I note is now quite old and in fact arose from discussions and observations made as far back as March 2018.  The report writer said:

   129.In my opinion, X’s positive temperament, and his good relationships with each parent, is indicative that X would readily adapt to an arrangement in which he could live with both parents on a shared-care basis. The parents should consider X’s needs, and young age when considering such an arrangement; and should note that a shared-care arrangement does not require equal time between the parents for X to enjoy the benefits of shared-care.

   130.In my opinion, a shared-care arrangement may continue to see X reside in the primary care of his mother, but spend sufficient time with his father to allow the child to feel as though his father plays a role in his schooling life, as well as his recreation time.

4. The recommendations of the report writer, all that time ago, included that time increase with the father and include regular overnight time and holiday time.  Dr G’s report, which I have read, does raise some concerns about each parent but did not recommend any psychiatric treatment for the mother, whilst at the same time indicating that he believed it was important for the mother to review the contents of the report with her GP.  In respect of the father, he did identify, as Ms Daniel has said today, some concerns about unresolved development issues, his use previously of psychoactive substances, and some mood disorders.  However, his treatment indicated that, like the mother, Mr Coupe needs to review the contents of the report with his GP and: “He does not need treatment for an active or acute psychiatric condition or a mental disorder now”.

5. With this background and noting the parents had separated when X was about two and a half years of age, the parties entered into the final Orders.  The final Orders are significant for a number of reasons.  Importantly, when the Court is required to consider any changed circumstances which may have occurred and whether these proceedings should continue, the Court is entitled to accept that the Orders made on 9 October 2019, with the consent of both parties, the support of the Independent Children’s Lawyer and with the extensive independent medical evidence and family report evidence to which I have referred that was before them, that when the parties consented to the Orders they said to the Court, as I believe they did, that these Orders were in the best interests of X.

6. The final Orders provided at paragraph 2 for the parties to have equal shared parental responsibility for major long term decisions.  This meant, of course, that the parties should consult and seek to reach agreement about any major long term issue.  In my view, that included the child undertaking counselling.  The evidence suggests that although the mother did raise her concerns about her child’s happiness as expressed to her by the child, something which the father said he had not heard from the child in his care, there was, in my view, a lack of proper consultation before the therapist selected by the mother was engaged but no criticism of the mother in the circumstances, in my view, should be made about that.  It seems that as early as July 2020, the father had reached out to the person he knew was providing therapeutic assistance to the child to see if there was anything he could do to assist the child. 

7. Returning to the Order, paragraph 3 provided that for the period from the Order until the end of term 4, 2019 the child shall live with the mother and spend time with the father each alternate week from after school Tuesday to before school the following Monday and from the end of term 4 school holidays 2019, the child shall live in a week about arrangement.  On any test, the initial Order was for substantial and significant time.  Clause 5 provided that for the holidays following term 4, 2019 and thereafter the child would spend half of the school holidays with each parent.

8. The evidence before me suggests that these Orders were effectively complied with, including school holidays, in Christmas/New Year 2019/20;  in the Easter school holidays 2020 and during school term from the commencement of 2020 until on or about 26 May 2020.  It is a matter of regret and disappointment, as I have raised with the parties today, that the very clearly enunciated Order that these parties agreed to broke down on or about 26 May 2020 and unilaterally the mother ceased time.  When the mother unilaterally decided to stop the child’s time with the father she should have filed an application in the Court immediately to seek for the Court to vary the Order because of what she said were significant psychological issues for the child. 

9. It is fair to observe that, of course, in May 2020 X, like most other children in Queensland, were in the grip of restrictions associated with the COVID-19 pandemic including restrictions on returning to school.  At least Exhibit 1, the notes of the counsellor, reflect that the child was missing going to school.  For reasons not adequately explained, in my view, in the material, well after Queensland school children returned to school, X continued to be home schooled.  That might be a matter for further investigation at a later stage but, nonetheless, the mother today informs the Court that since the beginning of this school year the child has returned to his usual school.

10. The mother says in her material that the child, who would have been at the time approximately six, was making comments of self-harm and great unhappiness and anxiety.  The father, in his material, says that no such comments were made to him while the child was in his care.  It is, of course, not surprising that these two parents, who fail to communicate very effectively at all, do not trust what the other parent has said.  The regret for me as I deal with this matter now on 4 February 2021 is that as soon as this Order broke down the matter was not brought to the attention of the Court and dealt with quickly.  There has now been a period of at least eight months, where, as a result of the mother’s unilateral actions but ones which she says were justified in the best interests of the child, this child has spent no time at all with the father.

11. Now, the father deserves some criticism as well.  X could do nothing about the Orders which his parents put in place in October being enforced.  It was a matter for a parent who sought to vary them, as the mother had, to come to the Court immediately.  She did finally do so on 13 July 2020 some nearly two months after she took the unilateral action she did and the father did nothing to bring to the attention of the Court the serious consequences for this child of him not having time with his father.  In my view, both parents deserve criticism for the way they have conducted themselves and it is not good enough to just say they do not know how the system operates.  They knew they were bound by an Order and they both knew that the Order was not being complied with.  They might have had a view about what was in X’s best interests, but they chose to, for reasons which they need to reflect on in their own mind, not allow the Court to review it.

12. I have now reviewed it.  There is nothing in the mother’s material in my view proportionally that would justify, on the face of the material as currently before the Court, the cessation of time with the father totally and for so long.  It is because of my concerns about what might be the effect of this cessation of time, on the child that I indicated on a preliminary basis today to Mr Logan who represents the father and the mother who still represents herself, that although at one level the matter should just revert to the Orders made in October 2019, so much has occurred for this little boy since then that I felt uncomfortable without further information returning to an equal time arrangement as was ordered by consent and should be operating now.

13. Because I do not have that data, I have made an Order for this child and the parents to engage in a child inclusive conference (CIC) as quickly as possible.  Thankfully, a cancellation in the Brisbane Registry enabled the CIC to be allocated a date of 25 February.  I have made that Order.  I have also made an Order that an Independent Children’s Lawyer be engaged.  My preference would be that Ms Smerdon, who was previously the Independent Children’s Lawyer in this matter, should be retained but that is a matter for Legal Aid. 

14. Part of the delay in this matter being dealt with today seems to be, at least the Registrar and the Senior Registrar are concerned about aspects of Rice & Asplund (1979) FLC 90-725. In my view, it seems fairly obvious that an equal time arrangement has, on the mother’s case, encountered difficulties for these parents, if not X. It might be that the Court now has to consider, as between these parties, which party should be the primary carer. The mother, of course, says that she should be the primary carer. In her material and submissions, she refers to previous Orders at earlier times where Judges have made Orders, it seems mostly by consent, that she be the primary carer. However, her actions since May 2020 will need to be examined at a later time.

15. The father, now, in his Application, as a long term order seeks that he be the primary carer.  It seems that both parties no longer accept that an equal time regime is in the best interests of the child, a position that they did accept when they entered into the Orders as recently as October 2019.  It is for those reasons that I am satisfied any impediment under the principles of Rice & Asplund (1979) FLC 90-725 are overcome.

16. I am very concerned about re-engaging this child in more conflict that has been created by the unilateral actions of the mother and, in my view, the inactions of the father.  I have given the matter a date before me on 8 March.  At that stage I would expect to have a report from the family consultant who will have had the benefit of reading these Reasons and hopefully the engagement of Ms Smerdon.  However, I made it clear earlier today that, based on the mother’s material, I am not satisfied it is in the best interests of the child that the child should not be returning to some time with the father immediately.

17. In view of the history of the matter, that should occur.  I am cautious about how to re-introduce, in a sense, the child to the father because of the cessation of time and what he may have said;  what he may have heard and what he might have been told in the mother’s home.  I do not say that in a critical sense, I just do not know.  It was only when I was engaging in oral submissions that it became apparent that the solicitors on the record for the father had in fact issued a subpoena to the psychologist unilaterally retained by the mother but with whom the father knew, via a mental health plan that was entered into and prescribed by the doctor in May 2020. 

18. Sadly, despite these records having been returned to the Court in November 2019, it seems (and despite it having been before the Registrar at least once since then) no one bothered to inspect the records.  I find that regrettable.  Nonetheless, I stood down the matter before final submissions were complete;  had the subpoenaed documents recovered from the subpoena room and allowed both the father and his lawyer and the mother to inspect the documents produced.  I have now read the documents as well.

19. There is nothing in the documents that would in any way suggest any disclosure by the child of maltreatment (psychological or physical) of the child by the father.  Whether the mother has misinterpreted comments made by the child;  whether the mother has made up allegations or has sought to minimise the child’s life with the father, is impossible for me, on the current data, to make any findings about that without testing all the evidence. 

20. However, I am comfortably satisfied it is in the best interests of the child that he return to spending unsupervised time with his father immediately.  In my view, it is also important bearing in mind the time he had with the father and having now read Exhibit 1, that that time include some overnight time.  It is important, in my view, that the time occur before the report interviews.  Otherwise, there is a real prospect of a distortion in observations or comments.

21. With this background, and with the identified agreed facts of which there are not many and unagreed facts of which there are many, the competing proposals on a very interim basis until 8 March are that the father proposes that the child on an interim basis spend time on an unsupervised basis immediately.  The mother opposes unsupervised time.

22. I will suspend Orders 3(a) and (b) of the Orders made 9 October 2019.

23. In accordance with the father’s proposal, which I will adopt, I will make Orders on an interim basis pending further order, that the child spend time and communicate with the father at all other times as agreed but at least as follows:

    (a)Sunday, 7 February 2021 between the hours of 9.00am and 5.00pm;

    (b)Sunday, 14 February 2021 between the hours of 9.00am and 5.00pm;

    (c)Sunday, 21 February 2021 between 9.00am and 5.00pm;

    (d)Saturday, 27 February at 9.00am until Sunday, 28 February at 5.00pm; and

    (e)Saturday, 6 March at 9.00am until Sunday, 7 March at 5.00pm.

1. I will Order that, unless otherwise agreed, changeovers shall occur at B Church car park in Suburb C, which is a public location.

2. I am going to Order that during changeovers, the parents shall treat each other with courtesy and not engage in any parental dispute or discussion of parental issues at that time in the presence of the child. 

3. In making these Orders, which are as contended for by the father, I am aware that there is apparently a family violence application that is to be dealt with, in some way, by a local Court in K Town on 16 February for mention.  I am told that there is no existing family violence order currently between these parties either temporarily or otherwise.  I identified with Mr Logan, with some surprise, that an application had been brought by the police, apparently served on the father in May 2020 which has not resulted in either a temporary order or any order at all at this time.  No doubt, in time, I might be given a better explanation about what has occurred with that proceeding.  But, to the extent that I may have been misdirected about whether a temporary order exists, then at least the Orders I have made would supersede that Order. 

4. The father should draw no comfort from my interim Order today that I will necessarily proceed in any particular way on the next occasion, nor should the mother.  I think it is a matter of great regret that this child has spent no time with the father for so long.  The Court processes were not properly engaged in by unrepresented parties and have led to some of these difficulties.  However, on 8 March, I propose to engage further in considering some longer term interim orders and to consider then to what extent the competing Applications now, which include the mothers attempt to re-agitate an Application for international relocation, should be permitted to continue or needs trial time.  Bearing in mind how old the family report is it may well require a further family report. 

5. I make the Orders which appear at the commencement of these Reasons.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       26 March 2021