Daniel & Coupe (No. 2)

[2021] FamCA 311

FAMILY COURT OF AUSTRALIA

Daniel & Coupe (No. 2) [2021] FamCA 311

File number(s):

BRC 9043 of 2020

Judgment of:

BAUMANN J

Date of judgment:

29 March 2021

Catchwords:

FAMILY LAW – CHILDREN – Where both parents seek the child live with them and spend time with the other – Orders made for the child to live with the mother and spend time with the father.

Cases cited:

Bennett & Bennett (1991) FLC 92-191

Daniel & Coupe [2021] FamCA 134

Rice & Asplund (1979) FLC 90-725

Vallans & Vallans (2019) 60 Fam LR 193

Number of paragraphs:

15

Date of hearing:

29 March 2021

Place:

Brisbane

Applicant:

Self-represented

Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Mr J Cahill

Solicitor for the Independent Children's Lawyer:

Gary S Rolfe Solicitors

ORDERS

BRC 9043 of 2020

BETWEEN:

MS DANIEL

Applicant

AND:

MR COUPE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	29 MARCH 2021

THE COURT ORDERS:

1.That the parents have equal shared parental responsibility for the major long term issues of the child, X born … 2014 (“the child”).

2.That the child live with the mother.

3.That the child shall spend time with the father at all times as may be agreed between the parents in writing, but failing agreement as follows:

(a)During the forthcoming Easter school holidays from 9.00am Friday, 2 April 2021 to 4.00pm Saturday, 10 April 2021;

(b)Commencing on Friday, 23 April 2021, each alternate weekend from after school Friday (or 3.00pm) to before school on Tuesday (or 8.00am); and

(c)In the off week, from after school Tuesday (or 3.00pm) to before school on Wednesday (or 8.00am).

4.That the child spend time with the parents during the June/July 2021 school holidays as follows:

(a)With the father from after school (or 3.00pm) on Friday, 25 June 2021 to 5.00pm on Saturday, 3 July 2021; and

(b)With the mother from 5.00pm on Saturday, 3 July 2021 for the remainder of the school holidays.

5.That changeovers shall occur at the child’s school.

6.That for changeovers which did not occur at school, changeover at the start of the time shall be at McDonalds Suburb L and changeover at the end of the time shall be at McDonalds K Town.

7.That should the child not be spending time with the mother in line with these Orders on Mother’s Day, the child spend time with the mother from 9.00am to 5.00pm on Mother’s Day.

8.That the family report interviews ordered to occur by Order dated 24 March 2021 shall occur in the third term of the child’s school year.

9.That these proceedings return to the Registrar’s list and be adjourned for Directions Hearing at 9.30am on 15 October 2021 in the Family Court of Australia at Brisbane.

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. The matter first came to my attention again on or about 4 February 2021 when I made various Orders to re-engage the child, X, with his father in circumstances where, as my previous Reasons set out, time had ceased Daniel & Coupe [2021] FamCA 134. The reasons why that time had ceased and whether or not they reflect, as the father suggests, the mother seeking to alienate or fail to support his relationship with X or, as the mother suggests, a combination of the need to protect the child through the early stages of COVID-19 and thereafter, to protect the child from the week about arrangement that the parties had agreed to put into effect, are triable issues.

2. Sadly, I have taken the view, as set out in my earlier Reasons, and I do not repeat that history, that the Orders that were made by the Court by consent in October 2019 have broken down.  The father says although he would prefer the child to live with him primarily and spend supervised time with the mother, he would recommit to the week about arrangement.  The mother also said she would prefer that there be supervised time between the father and the child, but in the interim, if no supervised time is imposed, then she would propose that the child live with her and spend time with the father from 9.00am Saturday to 5.00pm Sunday.

3. After the Orders of 4 February 2021, a Child Inclusive Conference took place to, at least, provide the Court with some background as to how the child was feeling about what has clearly been a disruption in his relationship with his father through not spending time with him.  In terms of future directions, family consultant, Mr D, in the report of the interview on 25 February 2021, indicated the following:

   35.I did not identify any immediate risks to X’s safety or emotional wellbeing that would warrant his time with either parent to be supervised. 

   36.Given the limited nature of this assessment, I am not willing to endorse the mother’s proposal for X to relocate with her to Country J. For the same reason, I am not willing to endorse the father’s proposal for a change of residence.

   37.In the absence of any substantive risk I do not believe X should be precluded from spending substantial time with the father.

   38.A week about parenting arrangement would require frequent communication and co-operation between parents. Both parents reported that they have completed a parenting orders program though they remain sceptical about their future capacity to co-parent.

   39.In the interim, the court could consider ordering that X spend time with the father from after school Friday to before school Monday. This could enable X to involve his father in his education and day to day life.

4. Although the Family Consultant indicated that if the parties are still in dispute in six months’ time, the Court could consider obtaining a family report.  I am currently pessimistic about these parties’ ability to resolve anything.  Whilst they are both unrepresented, I have read their most recent affidavits.  It is a continuing litany of complaints, one against the other; denied and unhelpful.  It is almost as if the Orders of October 2019 were merely a speed bump in the journey of continuing conflict that has engulfed this couple, really, almost for the entirety of their child’s young life.

5. I am satisfied it is in the best interests of X that he have and will benefit from a meaningful relationship with his father. I accept that both parties do parent differently.  Their communication is poor but I am not satisfied on the evidence, at the moment, that either is a risk to the child and agree with Mr D that there is no basis for supervised time.  For this child, one would need to be very cautious, at this stage, about attributing any particular weight to his wishes.  It seems clear that he is hearing more than he should.  Whether it is in both homes or only one home, I could not determine, at this stage.  What is clear, however, is he is aware that, again, his parents are in conflict about him.  At his age, bearing in mind that he has only recently turned seven, he is entitled to have less conflict in his life.

6. I understand the mother raises issues about bruising and genital rashes but there is nothing on the evidence to suggest that these are associated with any ill-treatment or ill-harm by the father, as the mother does not actually suggest, but infers.

7. The mother also says that when the child was primarily living with her and having no time with the father, he had no dental fillings, but since they have returned to spending time, he has five fillings.  That summary of his dental treatment is illogical, in my view, and both parties having had significant time with him over much of his life, should bear some responsibility for his dental hygiene.  However, his dental hygiene is but a matter where both parties, again, seek to blame the other party.

8. I sadly come to the view that there are many risks to this child’s emotional behaviour because of the parents’ conflict.  However, I am not prepared, on an interim basis, to support the mother’s proposal, which is to significantly limit the child’s time with the father.  Somewhat illogically, the mother appears not to be concerned that the father spends half of the school holidays with the child, but is concerned that he not have time with the child during a school term other than on a weekend.  It is not in the best interests of this child to be limited in that way with the father.  The father’s proposal for week about time is logical to the extent that it is a carryover from an Order made by consent in October 2019.  It seems to me, at least on the evidence I am now reading, that these parties are unable to make equal time work effectively.  That is not only as a result of their poor communication, which they both acknowledge occurs, but also their seemingly different parenting styles and, at least allegedly, a lack of respect for and support of the other parent’s relationship with the child.

9. Accordingly, on an interim basis, I am not prepared to return to equal time.  The child ought have substantial and significant time in the care of the father.  He is of school age, attending Suburb N State School, where he is in grade two.  Although the mother’s home is closer to the child’s school than the father’s, they are both able to access the child for pick-up and delivery at school.  In my view, changeovers at school has the benefit of the parties not having to come in contact with each other.  There is now a new Independent Children’s Lawyer (“ICL”) in this matter and, in my view, information from the school might be helpful in shaping what further long term orders are to be made.

10. I note, in passing, that the mother had previously sought an order for relocation, but at the hearing before me when consent Orders were agreed to in October 2019 (in the midst of a callover) the mother indicated she was not relocating.  She now says she wishes to relocate again.  It seems to me most likely the mother has always wished to relocate and merely held off her view on the last occasion.  She now produces evidence from a psychologist who says that she will be a much happier parent if she is supported by her family in Country J.  I can well understand that to be the case.  At the same time, this child has had a strong bond with his father, reflected by the Orders the parties agreed to and identified in the earlier family reports.

11. X’s future is very much at risk by the conflict of his parents.  In my view, the best arrangement is for the father to have substantial and significant time.  I propose to order that the parents have half of their forthcoming school holidays.  When school resumes, the Order of the Court will be that the child live with the mother and the child spend time with the father each alternate week from after school Friday to before school Tuesday and in the off-week after school Tuesday to before school Wednesday.  The child will spend Mother’s Day with his mother.  Changeovers which do not occur at school shall occur as currently ordered when I varied the Orders on the last occasion.  I will be directing the ICL to prepare an Order in these terms and to produce it to the parties and send it to the Court.  The mother in her Application does seek an order for sole parental responsibility.  As the Full Court (Kent J) identified in Vallans & Vallans (2019) 60 Fam LR 193, there should be a principled reason to depart from the presumption of equal shared parental responsibility set out in the Family Law Act 1975 (Cth).

12. Furthermore, in this case, the parties agreed to an Order in October 2019 for equal shared parental responsibility.  On an interim basis, notwithstanding the mother’s concerns about communication, I am not prepared to alter that Order.  The parties will continue to have equal shared parental responsibility.  Because of the Orders I am making, the Orders will take place and be effective, at least, for the whole of the end of second term 2021 school holidays.  The holiday Order will apply to the school holidays commencing Good Friday, 2 April, and to the Queensland school holidays in June.  In my view, as a direction to the ICL, I would propose that family report interviews be conducted during the midst of the third term of 2021, so as to give these new arrangements an opportunity to settle down.

13. Whether the parties are able to again agree on equal time or not, seems unlikely.  In my view, after a family report is procured, the Court will most likely have to decide:

    (a)whether the child be permitted to relocate to Country J or whether that should be dealt with as a threshold issue in accordance with the principles in Rice & Asplund (1979) FLC 90-725 and Bennett & Bennett (1991) FLC 92-191 (noting the mother’s concession in October 2019);

    (b)whether or not the child should primarily live with the mother and spend time with the father; or

    (c)whether the child should primarily live with the father and spend time with the mother. 

14. There are a number of issues that have arisen over the last 12 months which will need further evidence and investigation.  The Court is not in the position to make findings about those issues today but I am concerned that this little boy has again been engulfed in conflict between two parents who seem to have very little ability to compromise or to reach agreements about matters in which they strongly believe they are right.

15. The Orders appearing at the commencement of these Reasons are in the child’s best interests on an interim basis.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann J.

Associate:  

Dated:       27 May 2021