Dunn & Dunn (No. 2)

[2021] FamCA 425

FAMILY COURT OF AUSTRALIA

Dunn & Dunn (No. 2) [2021] FamCA 425

File number(s):	ADC 5380 of 2020
Judgment of:	BERMAN J
Date of judgment:	23 June 2021
Catchwords:	FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Best interests of child – Interim arrangements – Where the children currently live with the mother and spend time with the father – Where the mother seeks to reduce the time spent with the father – Where the father seeks to increase the time he spends with the children – Where the opinion of the family consultant is that there should not be an increase nor a decrease in the time the children spend with the father – Where the family consultant’s recommendations are consistent with the evidence – Applications dismissed.
Number of paragraphs:	34
Date of hearing:	18 June 2021
Place:	Adelaide
Counsel for the Applicant:	Mr McGinn
Solicitor for the Applicant:	Clelands Lawyers
Counsel for the Respondent:	Mr Jordan
Solicitor for the Respondent:	Jordan Fowler Family Lawyers
Counsel for the Second Respondent:	Ms Sabou
Solicitor for the Second Respondent:	Stanley & Co Lawyers

ORDERS

ADC 5380 of 2020

BETWEEN:

MS DUNN

Applicant

AND:

MR DUNN

First Respondent

MR A DUNN

Second Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS THAT:

1.The interim parenting applications of the parties are 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 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 Dunn & Dunn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

1. Ms Dunn, nee … (“the applicant”) and Mr Dunn (“the respondent”) are engaged in ongoing litigation in respect of the future parenting arrangements for X born in 2015 (“X”) and Y born in 2018 (“Y”) (collectively referred to as “the children”) and for settlement of property and spousal maintenance.

2. On 23 December 2020, parenting orders were made which provided for the following:

   1.        …

   2.        That the children live with the wife.

   3.        That the children spend time with the husband as follows:

   a.Each Wednesday from the conclusion of school (or if no school then 2.00pm) until 6.30pm UPON NOTING that the husband will collect Y from the wife as may be agreed or in default of agreement from the wife immediately prior to the conclusion of school (or if no school then 2.00pm) on Wednesday;

   b.Each alternate weekend from the conclusion of school on Friday (or if no school then 2.00pm) to Sunday at 5.00pm, commencing 1 January 2021

   …

3. The applicant continues to oppose the current interim orders and seeks to restrict the children’s time with the respondent to each alternate Sunday from 10.00 am until 5.00 pm and each Wednesday from the conclusion of school for X and from the mother’s care for Y until 6.30 pm.

4. The respondent continues to seek an extension of his time with the children to include an overnight each Wednesday.

5. By reference to judgment delivered on 17 March 2021,[1] the applicant’s application seeking to restrict the respondent’s time with the children was dismissed.

   [1] See Dunn & Dunn [2021] FamCA 123

6. On 19 February 2021, a family report was ordered pursuant to s 62G(2) of the Family Law Act 1975 (Cth).

7. The following relevant paragraphs appear in the judgment delivered on 17 March 2021:

   44.The parties agree that it is important for the children to maintain a meaningful relationship with each of the parties.  The applicant contends that the children are at risk arising from the allegations that the respondent did not have a close emotional attachment with the children during the course of the relationship and seeks to spend time with the children for the ulterior motive of being able to gain information as to the applicant’s actions.

   45.It is not open to the Court at this stage to make a finding that the children would be adversely affected by spending time with the respondent.

   …

   48.I have given careful consideration to the primary and additional considerations pursuant to s 60CC of the Act.  I place weight on the current interim arrangements that have been ongoing now for some months.

   49.I consider that a cautious approach would be to continue the current interim arrangements rather than seek the further diminution of the respondent’s time with the children as sought by the applicant, but also to reject his proposal which would represent an extension of time.

   50.      It is likely that the Court will be assisted by the family report as ordered.

8. Family Consultant C (“the family consultant”) published a report on 14 June 2021.  Further consideration of the interim parenting argument was listed for hearing on 16 and then 18 June 2021. 

9. Leave was given for the parties to rely upon an affidavit of the father filed 15 June 2021 and an affidavit of the mother filed 17 June 2021.

10. Judgment was reserved.

    THE FAMILY REPORT

11. The family consultant considered the relevant risk factors to include the applicant’s assertion that the respondent exercised coercive and controlling behaviour, represented by intimidating and bullying conduct via text messaging. 

12. The family consultant was aware of two incidents of family violence which involved police attendance.  The first occurred in December 2019 when the applicant alleges the respondent grabbed her by the wrists seeking to look at the applicant’s phone and the second occurred in December 2020 when the respondent retained the children.

13. The respondent acknowledged that his post-separation conduct was likely to have caused distress to the applicant and claimed that his conduct was as a consequence of the breakdown of the relationship and his distress at the separation of the parties.

14. The more significant concern of the applicant was her observation that the father displayed an open preference for X over Y and that X was likely to be manipulated to align herself with the father against the mother.  The applicant’s concern was a thread that ran through the proceedings. 

15. The applicant conceded that the children should have and maintain a meaningful relationship with the respondent and in particular that X adores her father with the consequence that Y has become clingy to the applicant.

16. Consistent with the applicant’s concerns, the respondent agreed that he had a very good relationship with X but that he struggled with young babies and recognised that more effort was required to support his relationship with Y.

17. The family consultant observed each of the parties with the children.

18. It was apparent to the family consultant that there was a strong emotional attachment between X and the respondent.  At the end of the observation X was distressed at being separated from the respondent.

19. The family consultant did not observe a similar connection between the respondent and Y.  Y did not seem at ease with the respondent however, the family consultant considered that a likely explanation was that the respondent was more comfortable with X, being the older child.  The family consultant did not consider it was beyond the respondent’s ability to become more emotionally attuned to the children’s needs but in particular Y.

20. Both children were observed to be extremely happy to see their mother.  The family consultant summarised the observed interaction as follows:

    The observation was called to an end.  The most noteworthy aspect to this observation was the children’s comfort with their mother especially Y and with his mother he was more verbal and more animated.  X seemed to maintain her connection to her father through her drawings on the board but the mother appropriately acknowledged her drawings.  [The mother] was able to divide her attention between the two children in a way that was both natural and easy. [2]

    [2] Family Report dated 14 June 2021, paragraph 79.

21. The family consultant recognised the intense distrust between the parties, fuelled by the breakdown of the relationship.  Each considers the other to be a “bad, immoral or neglectful influence on the other party.”[3]

    [3] Ibid, paragraph 85.

22. The family consultant considers that the parenting issues needed to be determined to avoid the significant risk of damage to the children.  The family consultant was aware that the mother had taken X to a psychologist for therapeutic assistance and expressed the strong view that “X does not need to see a psychologist or similar; it is the parents who need to resolve their dispute and to ensure their focus is on the children”.[4]  

    [4] Ibid, paragraph 89.

23. The family consultant misunderstood the arrangements for the children spending time with the respondent on each Wednesday.  She was of the belief that the children currently spend each Wednesday overnight with the respondent.  She recommended that overnight time on Wednesday night cease for Y but continue for X.

24. Each of the parties’ counsel made much of the error.  It was submitted on behalf of the applicant that the family consultant’s mistake supported the applicant’s approach namely, to resist the respondent’s application for the introduction of overnight each Wednesday.  Counsel for the respondent contended that the recommendation of the family consultant amounted to an increase in time, in that it was not recommended that X should not spend overnight time with the respondent.

25. I do not consider that the error of the family consultant provides assistance to either party.  It is likely that the family consultant was reluctant to change her mistaken belief as to the arrangements in place for X.  The family consultant’s recommendation that overnight time for Y (if it had been happening) should cease is a relevant consideration.

26. The family consultant was guided by her assessment of the respondent as a person who would follow court orders and was unlikely to withhold the children.  The family consultant considered the respondent’s remorse to be genuine.

27. It is apparent that the family consultant considered the children’s best interests would be served by them continuing to spend time with the respondent but that any increase in time should only be reconsidered when Y reaches school age.

28. It appears that the conflict between the parties remains high and until each of the parties are able to regain perspective about the other, the conflict is likely to impact adversely on the children.

29. The recommendations of the family consultant support a retention of the current interim arrangements.

30. As discussed, the applicant seeks to reduce the children’s time with the respondent from the current arrangement whereas the respondent seeks to increase his time, albeit an increase to an introduction of overnight time on Wednesday or an extension of overnight time to Monday morning on each alternate weekend.

    INTERIM PARENTING

31. I bring to account the circumstances of each of the parties and note the matters raised in their most recently filed affidavits.

32. I do not consider that either of the parties have made out a basis to change the current interim arrangements.  The recommendations of the family consultant are consistent with the evidence.  Her opinion that there should not be either any increase or decrease in the time the children spend with the respondent is a sound observation based upon a comprehensive assessment of the parties and in particular, the observed interaction between the children and the respondent.

33. For these reasons, I do not consider that a change in the interim arrangements would be in the best interests of the children.

34. I make the order as appears at the commencement of these reasons.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       23 June 2021