Doughty & Fairhall
[2024] FedCFamC1F 383
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Doughty & Fairhall [2024] FedCFamC1F 383
File number(s): ADC 1712 of 2016 Judgment of: KARI J Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – Interim Parenting Arrangements – Where the mother seeks to dispense with the requirement for supervision of her time spending with the child – Where the father seeks that the interim time spending arrangements remain pending trial – Where the father’s position is supported by the Independent Children’s Lawyer - Where the father is concerned about the emotional and psychological risk to the child in the event the requirement for supervision is lifted – Whether the passage of time has ameliorated the risks previously identified by the court – Where the court considers orders for additional supervised time spending between the mother and the child. Cases cited: Fairhall & Doughty [2023] FedCFamC2F 113 Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 29 May 2024 Place: Adelaide Counsel for the Applicant: Ms Boyle Solicitor for the Applicant: Adelaide Family Law Pty Ltd Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Pittaway Lawyers and Conveyancers Solicitor for the Independent Children's Lawyer: Silkwoods ORDERS
ADC 1712 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DOUGHTY
Applicant
AND: MR FAIRHALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
29 MAY 2024
UPON NOTING that in the event that the Orders for the filing of documents for the First Day Hearing provided for in these Orders have not been complied with, the Court shall:
A.Give consideration to vacating the hearing; and
B.Give consideration to making an Order that the defaulting party pay the costs of the party not in default.
C.The trial is likely to be listed before the Honourable Justice Berman to commence on 14 October 2024.
THE COURT ORDERS:
1.That the proceedings are adjourned to 19 June 2024 at 9.15am for a First Day Hearing before the Honourable Justice Berman with such hearing to be conducted on a face-to-face basis and properly instructed counsel are to attend.
2.That the parties personally attend the First Day Hearing AND in the event they are not available, the file principal attend.
3.That in the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the First Day Hearing and be in a position to advise the court as to funding arrangements at the First Day Hearing.
4.That no less than seven (7) days prior to the First Day Hearing the parties shall file and serve:
(a)A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;
(b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.
5.That pursuant to s 62G(2) of the Family Law Act 1975, the parties and the child X (born 2015) attend upon a family consultant nominated by the Dispute Resolution Co‑ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with a request that such report be released by late September 2024.
6.The Family Report deal with the following matters:
(a)Any views expressed by the said child;
(b)The matters set out in ss.60CC, 61D(3), and 65DAA of the Family Law Act 1975; and
(c)The impact upon the child and upon the relationship with the mother if the Court made orders as sought by the Father;
(d)The impact upon the child and upon the relationship with the father if the Court made orders as sought by the Mother;
(e)Any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
7.The parties shall do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.
8.The report writer shall be at liberty to liaise with any person in relation to the welfare of the child.
9.Upon the Report being provided to the Court, the Court shall provide a copy to each party (or if represented the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
10.Unless a party objects, in writing, within fourteen (14) days of the release of the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
11.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
THE COURT NOTES THAT:
A.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
12.That until further order the child X (born 2015) shall spend time with the mother as follows:
(a)Each alternate Sunday from 9.00am until 1.00pm with such time to be supervised by the paternal grandmother but if she is not available then the paternal grandfather or paternal aunt commencing 2 June 2024
(b)Such further or other periods of time spending as agreed between the parties in writing from time to time.
THE COURT FURTHER ORDERS BY CONSENT:
13.As to the location of time spending, the Mother shall message the Father by no later than forty-eight (48) hours prior to the commencement of time spending as to the nominated location in City B for time spending to occur.
14.For the purposes of 13 herein, the Mother be at liberty to attend with either one of the maternal grandmother, maternal grandfather or the maternal uncle on each occasion.
15.Unless otherwise advised, handovers at the commencement of time spending occur between the mother and the supervisor at the Service Station at C Street in City B.
16.That the Mother will be at liberty to disclose copies of the following documents to her counsellor, Ms D, her social worker, Ms E and/or any of her treating professionals:
(a)The orders and the Reasons for Judgment of Judge Jenkins dated 27 January 2023;
(b)The Affidavit of the Independent Children's Lawyer filed 28 May 2023 annexing Dr F’s report dated 25 May 2023;
(c)Mr G’s report dated 2 May 2024;
(d)Child Impact Report prepared by Ms H dated 17 December 2022; and
(e)A copy of these orders.
THE COURT FURTHER ORDERS:
17.The Mother and X shall communicate via FaceTime on each Thursday from between 6.45 pm to 7.15 pm with the Father to initiate the call and NOTING that the Father will ensure that the said call is in the absence of any other person.
18.That the Amended Application in a Proceeding filed by the Mother on 23 January 2024 and the Response thereto filed 30 January 2024 be dismissed.
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 Doughty & Fairhall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are parenting proceedings in relation to the parties' child, X, born 2015. X is currently aged nine years.
The parenting proceedings in relation to X have a very, very long history before the court. I do not propose to detail all of that history for present purposes.
It is significant to understand that on 27 January 2023, orders were made in relation to X's parenting arrangements. Those orders provided, in summary, a change of X's primary care from the mother to the father; X having lived primarily with the mother from her birth, and the parties not being in a relationship at that time. In January 2023 X moved from spending time with the father, and into his primary care. That arrangement has subsisted since that time.
For present purposes, it is also significant to understand that following the change to X's primary care arrangements, orders were made for X to spend supervised time with the mother at a children's contact service. That time ultimately commenced in September 2023. There was therefore no time spending between X and the mother between January and September 2023.
The parties, to their credit, when they came before the court in February 2024, were able to implement by consent orders providing for a softening of the time spending arrangements between X and the mother, such that time began to occur away from a contact service, but supervised by family members.
The proceedings that are now before the court arise as a result of an Application in a Proceeding filed by the mother, preceding the orders made on 1 February 2024; namely an application filed by her on 6 November 2023, but amended on 23 January 2024, shortly prior to the hearing that was then scheduled to take place on 1 February 2024. That application had, at its heart, the mother's application to seek what she would consider to be more regularised time spending arrangements with X and, importantly, from her perspective, the removal, entirely, of any requirement that her time spending with X be supervised.
Matters have progressed since the filing of that application, in the sense that at a hearing on 1 February 2024, the parties were able to implement some arrangements by consent. Importantly, the arrangement that the parties implemented was that X would begin spending time with the mother, each alternate Sunday, initially for three hours, but building to four hours after three visits, supervised by the paternal grandmother, but if she is not available, the paternal grandfather or paternal aunt. With such time to occur between the hours of 9.00 am and 1.00 pm each alternate Sunday.
The parties additionally agreed time spending on X's birthday and they also reached agreement that there would be time spending on other occasions, as may be agreed between them, from time to time.
Importantly, those arrangements that the parties agreed to in February 2024 included an arrangement for supervision.
The mother's position today, albeit amended during the course of the hearing, is that she continues to press for the removal of any requirement for supervision, and she seeks an expansion of her time spending, such that it occur for a full day, effectively, on either a Saturday or Sunday, together with time spending each Wednesday, from the conclusion of school until 6.30 pm.
The mother's proposal, and the orders she seeks have been amended during the course of the hearing from that contained in her application, as a result of comments that I made to the parties as to where this matter sits in the trial pool, and the likelihood that it will be heard by way of final hearing prior to the end of the 2024 year.
The father's position is that there should, effectively, be no change to the mother's time spending arrangements with X. Certainly, he does not support any removal, at an interim stage, of the supervision requirement. Rather, the father suggests that those matters are ones that should be properly considered at a final hearing, when the evidence of all of the parties, and their respective witnesses and experts, can be heard, tested, findings made and a decision thereafter to follow, as to what parenting arrangements are in X’s best interests.
The Independent Children’s Lawyer (“ICL”), for her part, initially contemplated a relaxation of the supervision requirements, and expansion to the mother's time spending with X. However the ICL amended that position during the hearing upon understanding the close proximity of trial, having reflected on the material filed, and the submissions made during the course of the hearing. As a result of the same, the ICL promotes a position, effectively, that there be limited change, if any, to the current time spending arrangement between X and the mother. The ICL does not support any change to the current time spending arrangement, whether it be an expansion of time spending and/or the removal of supervision.
During the course of the hearing the father indicated a willingness to facilitate additional time spending between the mother and the child, on a Wednesday as sought by her, if that was to be entertained by the court. While this is not his primary position, the father’s position is that if the court were to order that time, again any such additional time should occur on a supervised basis.
BACKGROUND
I do not propose to set out the background of the litigation in detail. I say that because I am conscious that when Judge Jenkins made orders for the change of primary care on 27 January 2023, she delivered ex tempore reasons which, to some degree, set out the history of the matter (Fairhall & Doughty (No 2) [2023] FedCFamC2F 113). I have had regard to those reasons.
Those reasons are significant for present purposes, because they highlight for the parties, but importantly for the court, the concerns that were brought to bear when it was determined appropriate, and in X's best interests, to change her primary care arrangements. Principal amongst the concerns were concerns, that had been outlined in the Child Impact Report prepared by Ms H on 17 December 2021 (“the Child Impact Report”), as to the emotional and psychological harm, and risk of the same, posed by the mother towards X.
I have had regard to the Child Impact Report. I do not propose to detail all of the information contained in the report in these reasons, other than to say that it is apparent from the report, that Ms H had significant concerns about the mother's psychological functioning and significant concerns about the veracity of allegations made by the mother, in relation to the father, including but not limited to allegations of both sexual and physical abuse by the father directed towards her, including but not limited to an allegation that the child, X, was conceived as a result of a rape.
In addition, Ms H was significantly concerned about the mother's ability to support a relationship between X and the father, despite it being apparent that X, through the assessment process, enjoyed her time with the father, had a good relationship with the father and, indeed, wanted time spending to occur with the father.
Significantly, Ms H commented throughout her report, as to the mother's difficult presentation during that assessment process and Ms H described the same at paragraph 13 of her report, as “covertly aggressive, was openly dismissive of the writer’s level of experience, and displayed obvious attempts to control the assessment process.”
In addition, Ms H expressed concerns about comments made by X during the assessment process, which reflected poorly upon the mother, and her influence upon X, including but not limited to X not being allowed to hug the father, and X describing the father, and his family, as not being her family.
It appears to me, that Ms H's concerns go to the heart of X's emotional and psychological functioning and well-being. Those are risk factors which need to be properly assessed at a final hearing. As I have indicated to the parties earlier, that final hearing is now not all that far away.
Whatever the case may be, however, the concerns raised by Ms H, coupled with other factors as outlined in the reasons, led to a change of X’s primary care.
DISCUSSION
The mother submits today, that whatever risk she did present to the child - not that she makes any admissions about those matters, but she says that whatever risks she did present to the child, resulting in the change of primary care, have been significantly ameliorated. Firstly, because she has borne the consequence of the change of primary care, and the resultant impact that that has had on her relationship with X. Secondly, because she has had a hiatus of time spending, followed by periods of supervised time spending and during that supervised time spending no issues of concern have been raised in relation to her conduct, and the way that she engages with X. That, however, in my view, ignores the very significant concerns that Ms H has raised in her report, as to the underlying risk, and the underlying risk of harm in relation to X's emotional and psychological well-being. Whatever the case may be, those issues, from my perspective, are ones that have not been ameliorated and are best traversed at trial, and they are not ones that should now be determined at an interim hearing.
The father, for his part - and supported by the ICL - identifies, and submits, that the risk factor has not been removed, and cannot be ameliorated, in any other way, other than ongoing supervision, at this juncture. It is the father's position that the underlying risk of harm continues and he is concerned that X continues to be at risk of serious emotional and psychological harm, if exposed to the mother's undermining behaviour towards her relationship with the father. This is particularly in circumstances where the mother does not resile from the very serious allegations made about the father, about X's conception - all of which he denies - and all of which he says she has reported to third parties, including experts, and misrepresented events that have taken place.
I have had regard to the recent report prepared by Mr G and I am conscious of the concerns raised at the father's end, and by the ICL, in relation to that report. Again, the opinions of Mr G and, ultimately, the court's view about the long-term risks that the mother poses to the child, are matters that are best traversed at trial, and not matters that should be dealt with at an interim hearing, particularly in circumstances where a final hearing is proximate.
I have had regard to Part 7 of the Family Law Act 1975 (Cth) (“the Act”), which contains the new parenting provisions, as a result of recent amendments. I am conscious that the court is required to make orders that are in a child's best interests, and have the child's best interests as its paramount consideration. In particular, s 60Bof the Act also provides that the court is to:
(a) … ensure that the best interests of a child are met, by ensuring their safety, and
(b)… give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In making orders that are in a child's best interests, the court is to now have regard to what are described as the general considerations set out in s 60CC(2) of the Act. I have had regard to those considerations and, in particular, I have identified a number of factors, including but not limited to matters relating to safety, matters relating to the child's psychological and emotional development and needs, and the like.
It is clear to me, that both of the parties, at this stage, see the value in the child continuing to live with the father, and continuing a relationship with the mother. However, from the father's perspective, he says - as supported by the ICL - that the underlying risk of emotional and psychological harm is one that needs to be protected against, and the only way of doing so is by ongoing supervision.
The parties each make a range of allegations as to their respective conduct, particularly over the supervised time spending period. The mother criticises the father for not agreeing to additional time, and it may well be that those criticisms are well-founded, particularly so far as additional time spending on Mother's Day is concerned. The father, for his part, raises concerns about the mother's conduct during time spending and, in particular, conduct in relation to inspection, and then treatment, by the mother for head lice and concerns about the mother having, perhaps, an age-inappropriate conversation with the child about her menstrual cycle. The mother also sets out, in her affidavit, concerns that she has about communication that has occurred by FaceTime, and concerns in relation to time spending. None of those matters, however, in my view, speak for, or against, a change to the current time spending arrangements. They are matters which may, or may not, influence the final decision, when final parenting orders are made, but at this stage they are not ones that carry much significance.
At the moment what I see as the single most significant concern, are those which I have earlier outlined as those which led to the change of primary care, and which in my view the passage of time have not ameliorated.
For all of those reasons, I do not consider it appropriate for there to be any significant changes to the current time spending arrangements. Importantly, I do not consider it appropriate that there be a removal of the requirement for supervision. I do, however, consider that it is appropriate for there to be a limited increase to the mother's time spending with the child.
The mother has suggested a desire to spend time with the child on a Wednesday evening of each week. That would facilitate the mother having the opportunity to have a meal with X, assist her with her homework, or do any of the regular activities that might occur on a weeknight, after school.
The father's position is that a Tuesday is better than a Wednesday, from his perspective. While he is not certain, he is relatively confident that one of his supervisors will be able to supervise and facilitate that time spending arrangement. I accept that he is a little uncertain, at this stage, whether that will be able to occur. However, I have some confidence in the fact that the father not only lives with his parents, but that they have been supportive of whatever time-spending arrangements have been ordered in these proceedings to date, and that they will be able to facilitate that time-spending on a mid-week basis if it was ordered.
However having explored the possibility of mid-week time-spending with the mother, around the child's commitments, the court now understands that the mother does not pursue mid-week time-spending with the child, pending trial.
I do not know the reasons for that, but having been minded to give the mother that opportunity to engage, and involve herself in the child's life and activities, it is somewhat disappointing that this additional time spending sought by the mother cannot be accommodated by her. I therefore do not propose to make any changes to the current orders for time spending as agreed between the parties, and made on 1 February 2024.
The mother also, however, seeks a change to the current order for communication between herself and the child, such that she is ensured that it occurs in a private manner. I am, however, content that order 6 made, and agreed between the parties, on 1 February 2024 gives that arrangement privacy, because the father is obliged, by that order, to ensure that the call occurs in the absence of any other person. I accordingly do not consider it necessary to make any change to the order that has been made.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 11 June 2024
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