Daughty & Fairhall (No 2)

Case [2024] FedCFamC1F 869

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daughty & Fairhall (No 2) [2024] FedCFamC1F 869

File number(s): ADC 1712 of 2016
Judgment of: BERMAN J
Date of judgment: 19 December 2024
Catchwords:

FAMILY LAW – CHILDREN – Where the mother was the child’s primary carer – Where interim orders were made in 2023 for the reversal of primary care – Where the Court ordered nominal time between the mother and the child – Where the mother was considered to be a psychological risk and unable to support a relationship between the child and the father – Where the mother now seeks orders for primary care – Consideration of risk – Consideration of whether the mother would adversely impact the child’s relationship with the father – Where the evidence suggests that the mother has gained insight into her behaviour and supports the relationship  – Consideration of whether the father can promote a relationship between the child and the mother – Where the father concedes he did not facilitate or promote the relationship between the child and the mother as an act of retribution – Consideration of best interests – where the child is settled at her school – Consideration of the geographical distance between the parties – Consideration of impact of the child changing schools –  Where the child’s needs are being appropriately met in the father’s primary care – Where the evidence supports a finding that the child’s best interests are supported by the child spending as much time as is possible in the care of the time spending parent – orders for the child to remain living with the father.

FAMILY LAW – DECISION MAKING – where the father seeks sole decision-making responsibility – where the mother promotes equal decision making responsibility – Consideration of the child’s autism diagnosis – Where the mother asserts the father does not accept the diagnosis – where the father asserts the mother takes the child to unnecessary medical appointments – where the father now concedes the child’s autism diagnosis –  Consideration of whether the father can accept the child’s autism diagnosis and appropriately support her – where the father may lack the diligence and vigilance necessary to best promote the child’s development – Orders made for joint decision making.

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC,61D, 69ZT

Cases cited:

Andrew & Delaine [2009] FamCAFC 182

Doughty & Fairhall (2022) 65 Fam LR 537

Doughty & Fairhall [2024] FedCFamC1F 383

L v T (1999) FLC 92-875

M v M [1988] HCA 68

Maluka & Maluka [2012] 47 Fam LR 272

Vasser & Taylor-Black (2007) FLC 93-329

[2023] FedCFamC2F 113 (unreported)

Division: Division 1 First Instance
Number of paragraphs: 329
Date of hearing: 14 – 18, 21 & 22 October 2024
Place: Adelaide
Counsel for the Applicant: Ms Boyle
Solicitor for the Applicant: Adelaide Family Law
Counsel for the Respondent: Mr Roberts
Solicitor for the Respondent: Pittaway Lawyers and Conveyancers
Counsel for the Independent Children’s Lawyer:

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Details
AGLC
Daughty & Fairhall (No 2) [2024] FedCFamC1F 869
Case
[2024] FedCFamC1F 869
Decision Date

CaseChat Overview and Summary

In the matter of Doughty & Fairhall (No 2), the Federal Circuit and Family Court of Australia considered several significant issues relating to the parenting and care of a child born in 2015. The primary concern was whether the child should remain in the primary care of the father, Mr Fairhall, or if the mother, Ms Doughty, should be granted primary care. Another key issue was the allocation of decision-making responsibilities between the parents, particularly in light of the child's autism diagnosis. The court also needed to address the mother's allegations of sexual assault by the father in 2014, which she had not reported to authorities at the time but disclosed later in the proceedings.

The court carefully evaluated the evidence and arguments presented by both parties, including expert reports, witness testimonies, and the child's best interests. It found that the mother had gained insight into her previous conduct and was now supportive of the child's relationship with the father. The court also determined that the father, despite some initial concerns, could appropriately support the child's development and accept her autism diagnosis. Given the child's current stability and well-being under the father's care, the court decided that the child should continue to live primarily with the father while spending substantial time with the mother.

The court's final orders provided for joint decision-making responsibilities between the parents, with detailed arrangements for the child's time spent with each parent, including weekends, school holidays, and special occasions. The court also imposed specific communication and information-sharing requirements to ensure the child's needs were met and both parents were kept informed about the child's welfare and development. The detailed orders reflect a balanced approach, aiming to maintain the child's stability and support her relationships with both parents.

Orders

Orders of the court

ADC 1712 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DOUGHTY

Applicant

AND:

MR FAIRHALL

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The parties do have joint decision making responsibility for X born 2015 (“the child”).

3. The child live with Mr Fairhall (“the father”).

4. The child shall spend time with Ms Doughty (“the mother”) every second weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school Monday (or 9.00 am if a non-school day).

5. The mother and the child shall communicate via FaceTime each Tuesday and Thursday from 5.00 pm to 5.30 pm.

6. The child shall spend equal time with each of the parties during terms 1, 2 and 3 school holidays as follows:

6.1 The school holidays at end of terms 1, 2 and 3 shall be divided into two equal parts, with the child spending the first half with the father and the second half with the mother in even numbered years and the first half with the mother and the second half with the father in odd numbered years.

6.2 The handover of the child shall occur at 10.00 am on the midpoint day of the school holidays.

7. The child shall spend week about time with the parties during Christmas school holidays with handover to occur at 5.00 pm on the first Friday of the holidays and then occur at 5.00 pm each Friday thereafter.

8. The parties do spend additional time with the child as follows:

8.1 With the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2024 and each alternate year thereafter.

8.2 With the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2024 and each alternate year thereafter.

8.3 With the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2025 and each alternate year thereafter.

8.4 With the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2025 and each alternate year thereafter.

8.5 With the father from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2025 and each alternate year thereafter.

8.6 With the mother from 3.00 pm on Easter Saturday until the commencement of school on Tuesday in 2025 and each alternate year thereafter.

8.7 With the father from 3.00 pm on Easter Saturday until the commencement of school on Tuesday in 2026 and each alternate year thereafter.

8.8 With the mother from the conclusion of school (or 3.00 pm if a non-school day) on Maundy Thursday until 3.00 pm on Easter Saturday in 2026 and each alternate year thereafter.

8.9 With the father from 9.00 am until 5.00 pm on Father’s Day.

8.10 With the mother from 9.00 am until 5.00 pm on Mother’s Day.

9. The party who does not have the child in their care on the child’s birthday is to spend time with her from 9.00 am to 12.00 pm.

10. If either party has a birthday when the child is not in their care, then the child is to FaceTime that parent between 5.00 pm to 5.30 pm.

11. All handovers that do not occur at school do occur at the Service Station in Town J or such other place as the parties may agree.

12. The child shall continue to attend at her current school or such other school as the parties may agree.

13. In the event of a medical emergency involving the child, the party who has the care of the child shall notify the other party as soon as reasonably practicable and shall allow the other parent to attend upon the child.

14. Each party is to keep the other party informed as to the name and contact details of any medical practitioner or allied health professional treating the child.

15. The parties will keep the other of them informed of any significant medical, therapeutic or other health appointment as may be attended by the child from time to time, including the name and contact details of the treating professionals.

16. Each of the parties shall be at liberty to attend events at the school that parents are ordinarily invited to including but not limited to sporting events, concerts and parent teacher interviews.

17. The parties be at liberty by arrangement with the child’s school to have copies of all reports, newsletters, photographs and any other information which the party would ordinarily be entitled to receive at their own expense.

18. The parties have leave to provide a copy of these orders to the child’s school or to any treating health professional or allied health provider to the intent that these orders shall be sufficient authority for either party to obtain from all medical and health practitioners or other allied medical/health providers all such information in relation to the child, whether either party shall reasonably request from them at the cost of the requesting party in all things.

19. The parties are restrained and an injunction is granted hereby restraining each of them from:

19.1 Communicating with the other party other than in relation to the care, welfare and development of the child save and except in the case of an emergency, shall occur via email; and

19.2 Recording any communication with the child or the other party or causing or permitting any other person to do so.

20. The appointment of the Independent Children’s Lawyer is hereby 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The ICL relies upon the following documents:-(1)Family Assessment Report prepared by Ms R dated 20 September 2024.(2)Child Impact Report prepared by Ms H dated 17 December 2021.(3)Case Outline document of the ICL filed 9 October 2024.TREATMENT OF THE EVIDENCE At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). The consideration as to the extent to which s 69ZT of the Act should apply arises in respect of the matters as set out in the mother’s Outline of Case as follows:(1)The mother contends that it is in the child’s best interests to live in her primary care;(2)That the father’s conduct does not demonstrate that he has the capacity or willingness to support the relationship between the mother and the child;(3)That there is an unacceptable risk of psychological harm to the child if she remains in the primary care of the father as he is likely to entirely estrange the child from the mother; and importantly; (4)That the Court make a positive finding that in mid-2014 the father had sexual intercourse with the mother without her consent. The context of the alleged sexual assault is that the parties commenced a dating relationship in early 2014 with the alleged sexual assault to have taken place in mid-2014. A further assault is alleged to have occurred in mid-2015. Following the birth of the child in 2015 the father issued proceedings on 11 May 2016. The mother sets out the details of her relationship with the father at paragraphs 22 to 60 inclusive of her trial affidavit. Whilst the relationship was of short duration the mother says that the father was aggressive and would be insistent that the mother engage in sexual intercourse. In mid-2014 the mother alleges that the father sought to engage in sexual intercourse. By that, stage the mother wanted to end the relationship and she resisted the father’s advances. The mother contends that the father was angered at her refusal to engage in sexual intercourse, became angry and threw her to the floor. He then is alleged to have pulled down her pants to just above her knees at which point he sexually assaulted her. The mother considers that she did her best to resist the father but was overwhelmed by his size and strength. Further sexual assault then occurred. It is admitted by the mother that whilst she told the maternal grandmother and her General Practitioner of the assault, she did not go to a hospital, nor had she immediately reported the matter with police. An important consideration in the history of the matter is that whilst the mother told others of the alleged assault, she did not tell her father until 2017 for fear of how he might react. The mother reports that a police statement was made in mid-2020. According to the mother, there was a further aggressive and violent interaction between the parties on a second date in mid-2014. The mother wanted to end the relationship with the father and attended at his home to collect her belongings after 8.00 pm hoping that he would be at his parents’ home however, the father was present. Whilst packing up her belongings from the father’s bedroom, she alleges that the father would not let her leave the room and knocked the belongings from her hand and pushed her against the door. Without warning, the mother alleges that the father punched her with a right fist to the centre of her stomach and then requested sex.

Decision

Reasons for decision

Whilst more will be discussed, the father was trenchant in his denials that he had ever been aggressive or forceful in the parties’ sexual encounters, that at all times the mother was consensual and that specifically, he did not sexually assault the mother on either date in mid-2014.DECISION OF JUDGE JENKINS DATED 27 JANUARY 2023 Whilst the matter was listed before Judge Jenkins on 25 January 2023 concerning a determination of where the child would attend school, the substantive matter to be determined on an interim basis was the father’s application seeking a change in primary care. Her Honour brought to account the background of the proceedings and in particular, the final Consent Orders made on 30 July 2020. Those orders provided for the mother to have sole parental responsibility, for the child to live with her and spend time with the father gradually increasing from 8.30 am to 3.30 pm but without any overnight time. Whilst the orders appear to have regulated the parenting arrangements for the child, it is conceded by the mother that as and from 5 December 2020, the child did not spend time with the father pursuant to the 2020 Consent Orders other than the last visit on 26 December 2020. The father filed a Contravention Application on 11 August 2021 and pursuant to orders made 29 September 2021, a Child Impact Report dated 17 December 2021 was prepared. Pursuant to Consent Orders made on 30 March 2022, the father’s time with the child progressed to include overnight periods. Upon appeal by the mother, as set out in Doughty & Fairhall (2022) 65 Fam LR 537, the Full Court dismissed the orders made by Judge Jenkins on the basis that there was no viable application before the Court save and except for Contravention proceedings which did not permit the power to make parenting orders even by consent. An important aspect in the proceedings before Judge Jenkins, and repeated by the mother in the current proceedings, is the mother’s contention that the child was so distressed that she had tried to commit self-harm on two occasions. The Department for Child Protection (“DCP”) became involved following an order made pursuant to s 91B on 20 October 2022. Her Honour had significant regard to the DCP reports and the observations of the father and the child in the Child Impact Report. In [2023] FedCFamC2F 113, Judge Jenkins summarises the basis upon which a change in the primary care of the child warranted is readily ascertained from the following paragraphs:44.In this matter I have taken into consideration the risk to [the child] of being removed from the mother’s care as well as the risk to [the child] of remaining with the mother, and this includes a risk to [the child] of emotional harm because she is potentially being led to believe that there is something to be fearful of in her father’s care. The mother’s evidence is that [the child] has made disclosures that the father has sexually abused her. These disclosures are either true, in which case [the child] has made extremely serious allegations against her father, and yet the mother delayed taking any action in regard to same, or the mother is not telling the truth. In either case, [the child] is at potential risk of harm.45.As I have mentioned, the other of the primary considerations (sic) is the right of [the child] to have a meaningful relationship with her father. There is a real risk in this case that the mother will not promote a relationship between [the child] and her father, and indeed may be doing all she can to prevent any relationship from occurring. I have done my best to assess the veracity of the evidence before me in regard to these risks, and in my view, [the child] faces a greater risk of harm in the mother’s care, and ought to be placed immediately into the care of the father.

Ratio Decidendi

Legal Principle Established

I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.PARENTING CONSIDERATIONS The developmental, psychological, emotional and cultural needs of the child Whilst Ms R considered that the presentation of the parties and the child provided strong support for the father to retain primary care, she was less certain that any significant increase in the time currently spent with the mother pursuant to the interim orders would be to the child’s advantage. Whilst upon first consideration the proposition that the Court is to consider the advantages and disadvantages of the separate proposals of the parties may be simplistic, I consider that the prime focus must be the best interests of the child as the paramount consideration with the potential impact on each of the parties an important but of necessity a secondary aspect. The father made a late concession that there is no longer a requirement for the mother’s time with the child to be supervised. The current interim orders do not provide for supervision. There has been no application to suggest that the implementation of the current interim orders has been problematic in particular for the child but also the parties. The father’s concession is tantamount to his recognition that there is an emotional bond between the mother and the child. The observations of interaction between the mother and the child support a finding that it is important to this child to maintain and develop a strong relationship with each of the parties. Whilst Ms R did not consider that significant weight should be attached to the expressed wish of the child to return to the primary care of the mother, there is nothing to suggest that the relationship between the mother and the child is not important. The mother contends that she now has gained sufficient insight into her conduct and presentation such that the Court can have confidence that she will encourage and support the child’s relationship with the father. The proposition has currency both in terms of the mother’s primary application which is such that the child returns to her primary care or the alternative position which is that the child spends each alternate weekend and half school holidays with her. As has been conceded by both parties, the physical distance between them is such that more expansive orders in terms of the spend time with party are not practical. To some extent the evolution of the relationship between the parties and the child has moved beyond matters raised by Ms R in terms of her concern that the mother is able to support the child’s relationship with the father. A significant tranche of the evidence arises from the involvement of the paternal grandmother in supervising the mother’s time with the child over an extended period.