Easton & Gomez

[2023] FedCFamC1F 799

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Easton & Gomez [2023] FedCFamC1F 799

File number(s):	BRC 8436 of 2022
Judgment of:	BAUMANN J
Date of judgment:	28 September 2023
Catchwords:	FAMILY LAW – PARENTING – Where the parents agree on new final parenting orders with limited remaining issues in dispute – Final orders made in the best interests of the children
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of last submission/s:	8 September 2023
Date of hearing:	8 September 2023
Place:	Brisbane
Solicitor for the Applicant:	Keith Mole & Associates
Solicitor for the Respondent:	Litigant in person

ORDERS

BRC 8436 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS EASTON Applicant
AND:	MR GOMEZ Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	28 SEPTEMBER 2023

THE COURT ORDERS:

1.That the parties shall have twenty-one (21) days to make any further submissions as to the form of order being Appendix One to the Reasons now delivered.

2.That if no further submissions are received within twenty-one (21) days, the said orders shall issue as final orders, and all extant applications will 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Easton & Gomez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. In January 2017, Carew J made final parenting orders in respect of two children:

   (a)B (born 2008); and

   (b)C (born 2010).

2. As is apparent, at the time of the Orders, the children were aged eight years and six years respectively.  The Reasons for Judgment demonstrate the Orders were based on findings made that rejected serious allegations made by the mother against the father (including stalking, hacking her telephone and computer and repeatedly breaking into her home and motor vehicle).

3. Her Honour found the mother posed an unacceptable risk of emotional harm to the children, and the final Orders made provided for the children to live with the father and spend supervised time with their mother – reaching a level of the maximum fortnightly time the S Contact Centre could make available to the family.

4. At paragraph 146 of the Reasons for Judgment, Carew J observed that:

   While the order I propose to make is a final order, it has often been noted in this jurisdiction that no parenting order is truly final. In the event that the mother can demonstrate a significant change in her circumstances i.e. that she no longer holds her irrational beliefs about the father, she may be able to persuade a future court to reopen the parenting arrangements so as to remove the need for supervision.

5. The mother filed an Application on 14 July 2022 seeking the earlier final Orders be discharged and, inter alia, that the children live with her.  The father who has in this part of the proceedings been unrepresented, opposed any change to the Orders.  Ultimately after the proceedings were transferred to Division 1, on 25 January 2023, I conducted an Interim Hearing when I determined that a material and substantial change of circumstances had occurred, at least being the cessation of the supervised time Orders in September 2020.  I ordered supervised time resume at the T Contact Centre.

6. However, when the matter returned to my list on 5 April 2023, some concerns about the mother discussing historical adult conflict issues arose such that time was suspended, but that a specific issues report by a child court expert was ordered on 21 April 2023.  As I will now discuss, the report (directed to the children’s wishes and views), was released on 25 July 2023 and had broadly led to the parties now agreeing on new “final” orders – save for some discrete issues.

7. The reasons which follow seek to explain the determination of those discrete issues and, as they are now determined, incorporate those orders into the agreed orders, so that the orders at the commencement of these Reasons create a new suite of parenting orders.

8. Although neither parent has been tested in cross-examination, I wish to record the sensible and insightful position adopted by the father.  There is no doubt – in view of the history – that he continues to hold some concerns about the mother’s potential to undermine his relationship with B and C – a relationship now securely bonded by a period of over six and a half years as their primary (almost exclusive) carer, although he is supported by his long term partner, with whom both children expressed having a positive relationship.  However, he has carefully considered what the children have expressed independently to Ms U, and that persuaded him to consent to interim orders made on 8 September 2023, for C (now aged 13 years) to spend four hours of unsupervised time with her mother at a shopping centre each fortnight, commencing 9 September 2023.  B (now aged 14 years) was to spend time in accordance with his wishes.

9. The mother had the benefit of seemingly sensible legal advice from her solicitor Mr Mole – who I infer assisted her to modify her position from a “change of residence” to a more child focused position.  Again, I regard the specific issues report as fundamental to the parents reaching the positions they now adopt.

   SPECIFIC ISSUES REPORT

10. Child court expert and experienced social worker Ms U provided a report dated 25 July 2023, arising from reviewing the parents’ affidavits and importantly interviewing the children.  She was not directed to interview the parents or to observe the children with the parents.  It is not necessary in these Reasons to incorporate large portions of the report, but for context I note the following.

    B

11. Although he did miss his mother when he began living with his father in 2017, it has been a long time since he lived with or spent time with his mother.  He recalls, when he lived with his mother, she portrayed the father in a negative light.

12. B says he worries the mother wants to live in New Zealand and that “I feel unsafe” about the mother taking him with her.  At paragraph 9, B is recorded as expressing a wish that his time with the mother remain supervised for two hours a fortnight for “safety” concerns and reflected that attending the contact centre was not “teenager friendly” and “awkward”.  He expressed he has a really good relationship with his father who he has observed is “stressed” about being back in Court regarding parenting issues.  B described his step-mother as “amazing” and otherwise made comments revealing age appropriate engagement with his friends and his enjoyment competing in sport, where he has a national competition coming up.

    C

13. C presented as reserved and apprehensive to engage with the expert who chooses to keep her feelings to herself.  C expressed that she would like to spend time with her mother overnight and “definitely unsupervised”.  She described her step-mother as “nice” and added “she wants what is best for us.  She helped us out a lot”.

14. She recalled having positive memories with the mother saying they were “best friends”.

    Expert’s opinion

15. After noting that B’s views about time with his mother “seem to be aligned with the father’s views” and further expressing that “if [C] is not supported with her mother and be allowed reasonable freedom about her relationship with her, her relationship with the father can progressively breakdown leading to rejecting him…”, at paragraphs 21 and 22, Ms U opined:

    21.The children expressed a number of positive aspects about their life with the father.  They are settled in school, activities and have a positive connections with peer groups.  These are factors that contribute to children’s sense of stability, security and create an environment where they can thrive.

    22.Both children were articulate and have expressed different views about their time with their mother.  [C’s] time with the mother should be considered to start in the community progressing to overnights fortnightly on a weekend if the mother’s accommodation is deemed suitable and appropriate, with no active mental health crisis.  [C] can make a decision whether she likes to provide the mother with her phone number so they are able to communicate.  [B’s] time with the mother can be guided by his views and wishes.  He may choose to spend short day visits when he wants. It seems the benefit and advantages of the children be given emotional permission to connect with the mother and supportive environment of those relationships are more conducive to their wellbeing in the absence of unmanaged mental health.

    PRINCIPLES

16. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.

17. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

18. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

    DISCUSSION

19. It is not possible to give any guarantee to the father that the mother’s belief system and issues of concern raised by Carew J in her Reasons now over six years ago, may not still exist to some extent in the mother – and the remarks of B clearly suggest the mother may still at times involve the children in the dispute.  Although to a lesser degree the fact that B’s views appear aligned with the father, may suggest he is well aware of the father’s concerns about the mother.

20. However, although s 60CC(2A) requires protecting the children is to be given greater weight than the benefit they may derive from having a meaningful relationship with a parent, I agree that it is in the best interests of the children that they have the opportunity to reestablish a relationship with their mother without the constraints of a supervised environment.

21. At their respective ages, they each have a greater capacity for self-protection and the views they express should be given some weight.  In this regard, the father’s written submission filed 21 August 2023 reveal a cautious yet considered approach for C, beginning with day time visits at a local shopping centre, progressing after a period to overnight time.  In his submission, and “subject to [C’s] wishes and the health progress and disclosure of any mental health crises issues being non-existing” and “full disclosure of [the mother’s] physical address”, the father proposes holiday visits commence from the Winter (June) 2024 school holidays for up to one week each holiday.

22. Although the father would not oppose travel in Australia (with a full travel itinerary being provided), at the present time the father is “not comfortable… to permit travel outside of Australia”, including New Zealand where the maternal family live.  He says the maternal family had made no attempts to contact the children since 2017, except for an unexpected request on 12 July 2022 from the maternal grandfather Mr V, which the father facilitated, and which B indicated to Ms U was a positive experience.

23. Arising from the father’s submission, Mr Mole amended the mother’s minute of order which was filed on 7 September 2023, and which I have considered.

    DETERMINATION

24. Because of the way this matter has progressed, and with a view to achieving some sort of finality in this new phase of the matter, I propose to give both parties a period of 21 days to indicate, in writing, whether they wish to make a further submission or wish to adduce further evidence, on the form of order which appears as Appendix One to these Reasons.  As to continuing issues in dispute, I record the following findings:

    (a)The mother adopts the father’s proposal for progression of time to overnight time.  The extension to Monday if that day is a public holiday (and noting over the long term each parent is likely to get an equal share of “long weekends”) is adopted;

    (b)The mother resides at Town AE and says that changeovers should alternate between W Shopping Centre (near where the children live) and X Shopping Centre (near where the mother lives).  Of course, the children will need to endure the whole journey, wherever changeover occurs.  In my view, unless otherwise agreed, when the time moves to overnight visits, changeovers should take place at a point between Brisbane and Region H – and the Court determines that to be the McDonalds Restaurant on Y Street at Suburb Z;

    (c)At this stage, I would not extend Christmas holiday visits to two weeks, unless the parents agree, which they can do without returning to Court.  To avoid confusion and create some certainty, from the end of term 2024 school holidays, and in even numbered years thereafter, C will spend time with the mother for the first half of the end of term one, two and three school holidays, commencing at 10.00am on the first Saturday and concluding at 4.00pm on the middle Saturday.  In 2025 and odd numbered years thereafter, C will spend time with mother from 4.00pm on the middle Saturday until 4.00pm on the last Saturday;

    (d)The mother is to nominate a week in each end of term four school holidays and unless otherwise agreed, the week shall not include Christmas Eve, Christmas Day or Boxing Day.  Whilst I accept the mother has not had the opportunity to spend a Christmas celebration with the children since 2017, in circumstances where it appears less likely that B will choose to spend holidays with his mother, I regard it as in the best interest of the children that they spend Christmas together in the father’s home;

    (e)I regard it as appropriate for the mother to inform the father, before they commence a school holiday visit, if it is intended to spend overnight time away from the mother’s usual residence.  In this regard, both parents will be ordered to keep the other parent informed of their residential address and to advise of any change within seven days of a change;

    (f)The father wishes to be kept informed of any developments (particularly adverse to her functioning) relating to the mother’s mental health.  This is a difficult and vexed question where:

    (i)the mother, in her initial affidavit filed 14 July 2022 (sworn 15 July 2021), says, inter alia:

    (A)at paragraph 6 she seeks impermissibly to reagitate the evidence and findings made during the January 2017 trial; and

    (B)asserts her medical issues are essentially, not mental health issues but related to post and ongoing “[…] migraines”, as confirmed by her general practitioner Dr AB in letters dated 29 September 2020 and 17 November 2020.

    (ii)The Reasons of Carew J referred to the evidence of Psychiatrist Dr F at paragraphs 131, 132 and 133, and his opinion that “if the mother’s condition is in fact a delusional disorder it would be difficult to treat”.  There is no evidence that the mother has undertaken treatment as recommended by Dr F, although if she had, she was permitted to provide copies of reports and the Reasons for Judgment to her treating health professional.  In these circumstances, there is no medical report the mother could produce to the father about her “mental health”.

    (iii)If the mother is “unwell” during a visit, particularly an overnight visit, the mother may not be capable of recognising her “unwellness” and as a result may not be able to communicate with the father.

    (iv)Although I accept that empowering a child (even a 13 year old) with a mobile phone can present a range of other challenges, on balance I will order that the child (when visiting the mother) shall have access to her own mobile phone so that she is able to telephone the father if she feels unsafe, in which case the father should be able to discuss the child’s concerns immediately and, in an urgent situation for the child’s protection, take steps to collect the child.

    (g)The mother seeks an order that she be permitted to travel to New Zealand with the children, and that the father shall not unreasonably refuse consent.  At this early stage of the new phase of “co-parenting”, the father’s concerns about permitting the child to leave Australia are not unreasonable.  There is no evidence that the maternal family have a relationship with the children, nor that the children wish to visit New Zealand (in fact B expressed some concerns about doing so).  I accept that the mother would want the children to experience her country of birth and might benefit from doing so.  However, considering the history of this matter, I find it is more important for the children to have the opportunity to reestablish their relationship with the mother, than to visit family in New Zealand.  Certainly, B told Ms U he enjoyed seeing his maternal grandfather last year for his  birthday, but the Court would need more evidence before it could be satisfied that it is not only in the best interests of the children to travel to New Zealand, but also that there is no risk of not returning.  In the circumstances, the Court adopts the father’s position which prohibits the children being removed from Australia, at this time. Of course, in the future, the father could consent to such travel without the parties being required to return to Court.

25. As I mentioned at paragraph 24 of these Reasons and reflected in the Order at the commencement of these Reasons, if no further submissions as to the form of order are made, the Order will issue as a Final Order and all other applications before the Court shall be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       28 September 2023

APPENDIX ONE

1.That Orders 6-9 inclusive of the Orders of the Family Court of Australia dated 27 January 2017 be discharged.

2.That the children shall spend time with the mother at all such time as may be agreed between the parties and failing agreement as follows:

(a)In relation to the child C born 2010 (“C”) the child spend time with the mother:

(i)For a period of two (2) months from the date of these Orders each alternate weekend for four (4) hours on a Saturday at a Shopping Centre agreed on by the parties and failing agreement at the W Shopping Centre with changeover at the main food court;

(ii)For a further period of two (2) months each alternate weekend from 9.00am until 4.00pm on a Saturday with changeover to be at McDonald’s Restaurant, Y Street, Suburb Z unless otherwise agreed in writing; and

(iii)Thereafter each alternate weekend from 9.00am Saturday until 4.00pm Sunday (or Monday if that is a Public Holiday or Pupil Free Day for the school C is attending) with changeover to be at McDonald’s Restaurant, Y Street, Suburb Z unless otherwise agreed in writing.

(iv)Subject to C’s wishes from the commencement of the winter school holidays in 2024:

A.each Winter, Spring and Easter School Holidays for a block of up to one week, in the first week of the holidays in 2024 and each alternate year and the last week of the holidays in 2025 and each alternate year; and

B.for the Christmas School Holidays for up to one week with the mother providing the father with at least three (3) months notice of the week she proposes to spend time with C but with the period nominated not to include the period of 24 – 26 December inclusive.

(b)In relation to the child B born 2008 (“B”) in accordance with B’s wishes from time to time and the father shall not discourage B from spending time with the mother in particular joining with C in spending time with the mother in accordance with Order 2(a) above.

(c)That for the purpose of overnight or block time, the mother shall provide the father with details of her address and an emergency contact number together with notice of her intention to take the children interstate and details of such trip (save and except for a trip to Region AC or Region AD in New South Wales).

3.That the mother be permitted to provide the children with a telephone number on which the mother and children can communicate should they so wish (whether by way of voice call, message or video call) and the father shall not prevent or discourage the children from communicating with the mother.

4.That the children shall be entitled to use the mobile phone (provided by the mother under Order 3 of these Orders) or a mobile phone provided by the father, when in the care of the mother under these Orders and are free to telephone the father at any time they are in the mother’s care.

5.That the mother shall not remove the children from Australia without the father’s consent or by order of a Court.