Eggleston & Hackett
[2022] FedCFamC2F 1383
Federal Circuit and Family Court of Australia
(DIVISION 2)
Eggleston & Hackett [2022] FedCFamC2F 1383
File number(s): HBC 1076 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 17 October 2022 Catchwords: FAMILY LAW – children – where child is diagnosed with autism spectrum disorder and has difficulty managing change – orders by consent that the parties have equal shared parental responsibility subject to conditions and that the child live with the step-father – orders by determination that the child spend time with the mother alternate weekends from Friday to Monday – appointment of a parenting coordinator – changeover arrangements Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60CA 60CC(2), 60CC(3) Cases cited: Aldridge & Keaton (2009) FLC 93-421
Dieter & Dieter [2011] FamCAFC 82
Gill & Ingram [2022] FedCFamC2F 109
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 10 & 11 October 2022 Place: Hobart Counsel for the Applicant: Ms Scolyer Solicitor for the Applicant: Murdoch Clarke For the Respondent: In person Counsel for the Independent Children’s Lawyer: Ms Ryan, instructed by Ms Mooney, SC ORDERS
HBC 1076 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EGGLESTON
Applicant
AND: MS HACKETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
17 OCTOBER 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.By consent subject to the terms of Order 2, the applicant Mr Eggleston (“the Applicant”), and the respondent Ms Hackett (“the Respondent”), have equal shared parental responsibility for the child X born in 2010 (“X”).
2.By consent, in respect of major or long-term decisions concerning the wellbeing, welfare or safety of the child and for the purpose of exercising decision making required or authorised by Order 1, the following terms will apply, except in the case of an emergency:
(a)If a party proposes to exercise decision making about parental responsibility, they must notify the other party in writing of the proposed decision and their reason(s) for it;
(b)The party receiving notice pursuant to sub-paragraph (a), must within 14 days provide their written response to the proposed decision, indicating if they agree or disagree and if they disagree stating their reason(s) for disagreeing;
(c)Within 7 days of the notice in sub-paragraph (b) being sent, the parties are to arrange a time with a parenting coordinator or with N Counsellors to confer for the purpose of coming to a joint agreement about the decision to be taken; and
(d)For the purpose of the written notice required by this order, the parties will communicate via the following email addresses and also keep the other party informed of any change of email address.
3.By consent, in the event that the parties do not reach agreement as to the decision to be taken about parental responsibility for the purposes of Orders 1 and 2, providing the Applicant has complied with Order 2, he is authorised by this order to solely make the decision to be made.
4.By consent, the Respondent is restrained from making a decision in exercise of parental responsibility pursuant to Order 1, unless the parties have reached agreement pursuant to the terms of Order 2.
Live With and Communication with the Children Orders
5.By consent, X will live with the Applicant.
6.The Respondent spend time with X as follows:
(a)During school term, commencing Friday 21 October 2022 until commencement of Term 1 in 2023, each alternate Friday from 4:00pm to Sunday 4:00pm;
(b)During school holidays in the Term 1, 2 and 3 school holiday periods, the Respondent’s time will be two non-consecutive blocks of four (4) nights, with the precise nights will be as agreed in writing; and failing agreement, the mother’s time will commence in Week One after school concludes on the last day of term and in Week Two at 4 pm Thursday before the next school term commences.
(c)By consent, during school holidays the summer school holiday periods, the Respondent’s time with X will be as follows :
(i)In summer holidays commencing in even numbered years from 11 am Christmas Eve to 11 am Boxing Day.
(ii)In summer holidays commencing in odd numbered years from 11 am Boxing Day to 11 am 29 December.
(iii)On the following dates :
A.2 January to 6 January
B.13 January to 17 January
C.24 January to 28 January
D.3 February to 6 February
E.Or such other dates as agreed in writing resulting equivalent total nights that holiday period.
(d)From Term 1 2023 and commencing Friday 17 February 2023, the Respondent’s time each fortnight during school term will increase to Friday after school to Monday at commencement of school.
Notation: In respect of precise changeover arrangements for the purpose of Order 6, refer to the Orders under the heading “Changeovers of Care”.
(e)By consent, each Mother’s Day from 4:00pm Saturday to 4:00pm Sunday.
(f)By consent, that the Respondent will communicate with X preferably by video call, and if not by mobile telephone or between 6:00 pm and 7:00 pm each Wednesday, with the Respondent to initiate the call to the Applicant’s mobile and the Applicant will facilitate that call without anything other than mere exchange of greetings between he and the Respondent.
(g)By consent, that additionally, when X requests at a reasonable hour to communicate with the Respondent, the Applicant will facilitate that telephone call or videocall to the Respondent.
(h)By consent, that in the event of the Respondent not having established suitable accommodation for X, she will notify the applicant in writing of this occurrence and whether she will spend time with X at temporary suitable accommodation or move to daytime contact temporarily and once the Respondent has secured more permanent and suitable accommodation for X she will notify the applicant her time is moving back to overnight time as per Orders 6 (a)-(d).
(i)By consent, such further or alternative spend time with, and communication as agreed between the parties in writing.
7.By consent, notwithstanding any other order herein, the Applicant will spend time with X on the following special occasions :
(a)In summer holidays commencing in even numbered years from 11:00 am Boxing Day to 11 am 29 December.
(b)In summer holidays commencing in odd numbered years from 11 am Christmas Eve to 11 am Boxing Day;
(c)On Father’s Day from 4 pm Saturday to 4 pm Father’s Day.
(d)Such other times as agreed in writing.
Changeover of Care
8.By consent, within seven (7) days of the date of this Order, the parties will make contact with the B Contact Service and express interest in using the service for changeovers; they will also make note in discussions with the B Contact Service of X’s disabilities and special needs.
9.By consent, the parties will cooperate with and follow the directions of the B Contact Service, including but not limited adhering to the B Contact Service policies, attending their own intake appointments and facilitating X’s attendance at as many orientation sessions as the B Contact Service recommend.
10.By consent, until Term 1, 2023, all changeovers will be at the B Contact Service, at times as close to those ordered in Order 6 above as the B Contact Service can facilitate, subject to Order 11.
11.In the event the B Contact Service cannot facilitate changeovers, they will be held at the carpark of the McDonald’s Restaurant in Suburb C.
12.By consent, between now and Term 1 2023, the parties will engage with X’s support workers and school principal (or his or her delegate) at X’s proposed high school, to devise an appropriate changeover routine for X when changeovers of care are held at school.
13.By consent, from Term 1, 2023 changeover of care will be held at school if the school has approved the specific logistics of changeovers and the precise time of changeover will be agreed with the school.
14.By consent that on any day changeover of care is held at school, the Applicant will not be present at the school or within 200 metres of the school boundaries during the 60 minutes proceeding changeover times.
15.That any changeovers that cannot be held at school will be held at the B Contact Service if the B Contact Service is able to facilitate the changeover, and in the event that the B Contact Service is unable to facilitate changeover it will be in accordance with Order 11.
16.By consent, the parties are at liberty to have their agent facilitate changeovers that are not held at school or the B Contact Service, provided that person is known to X and should they choose to do so, they will provide written notice to the other party of this, no less than two hours prior to changeover.
Injunctions and Responsibilities
17.By consent, the Respondent is hereby restrained from working in paid employment on days X is spending time with her.
18.By consent, any reference to “written notice” within these Orders, includes the use of text messaging, email, or messaging app if one is agreed in writing.
19.By consent, all communication between the parties will be confined to matters concerning the health, development and welfare of X and these parenting Orders.
20.By consent, the parties will inform each other of any change to their residential address, email address and mobile telephone number within forty-eight (48) hours of any such change.
21.By consent, within a reasonable time of a subject event, the party with care of X will notify the other party should X sustain any medical emergency, serious illness, or other significant issue affecting their health or welfare.
22.By consent, the parties will provide each other with written notice of any changes they become aware of in X’s medical or allied health treating professionals and any changes or additions to their recommendations and treatment, within a reasonable time of any such change and such written notice will include that professional’s contact details.
23.By consent, pursuant to Section 68B of the Family Law Act and for the personal protection of the parties and X, the Respondent and the Applicant will each use civil and respectful language when communicating with each other or other members of each other’s households and each party be and is hereby restrained and will not:
(a)Criticise, abuse, denigrate, insult or belittle or otherwise speak negatively, rudely or critically about the other or their family to X, in the presence of X or within X’s hearing and nor will they permit any other person to do so.
(b)Discuss these proceedings or any future dispute between them in the presence or hearing of X or permit any other person to do.
(c)Expose X to any form of family violence (including verbal abuse) and in the event of becoming the target of family violence they will ensure X is removed promptly from that situation.
24.By consent, pursuant to Section 68B of the Family Law Act and for the personal protection of X, both parties be and are hereby restrained from engaging in the use of any illicit substance(s) or excessive alcohol use during the twenty-four hours prior to X entering their care and while X is in their respective care and from exposing X to drug paraphernalia, and both parties are hereby further restrained from bringing X into the presence of any third party who may be under the influence of an illicit substance(s) or intoxicated by alcohol consumption.
AND THE COURT NOTES THAT:
A.Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 23 or 24 have been breached.
25.By consent, both parties will separately engage with Autism Tasmania to further develop their skills in parenting X.
26.By consent, subject to school policy, both the Applicant and the Respondent are at liberty to request copies of X’s school reports, newsletters and school photographs and should they do so the requesting party will be solely responsible for the school’s costs of complying with any such request.
27.Subject to school policy, both the Applicant and the Respondent are at liberty to attend X’s extra-curricular, school events and separate appointments for parent teacher interviews.
28.Both parties will attend on their general medical practitioners to obtain mental health plans and referrals to a psychologist to address issues as relevant of cannabis use, family violence and stress.
29.By consent, the parties each provide a copy of these orders and the judgment of Judge Taglieri to their psychologists and the Parenting Coordinator.
30.By consent, the Independent Children’s Lawyer will provide copies of these Orders to X’s school and the Safe at Home Unit.
31.By consent, the parties will provide a copy of these orders to any future school in which X is enrolled and all organisations involved in X’s treatment and the National Disability Insurance Agency.
32.By consent, any current “companion card” issued by the Department of Premier and Cabinet with respect to X is to travel with X and therefore will always be in possession of the party with care of X at any given time.
Parenting Coordinator
33.The parties will forthwith retain Ms D as parenting coordinator (the “Parenting Coordinator”), for a minimum term of twelve (12) months from the date of these orders, on the terms provided in this Order and in the form of the parenting coordination agreement endorsed by Parenting Coordination Australia (the “Standard PC Agreement”), provided that where terms of this Order conflict with the Standard PC Agreement, this Order will prevail.
AND THE COURT NOTES For the purpose of this order, the Independent Children’s Lawyer will provide Ms D’s contact address, email and preferred telephone number.
34.The parties shall attend on the Parenting Coordinator as required by the parenting coordinator on a non-confidential basis.
35.That the Parties parenting arrangements in relation to X are set out in these final Orders.
36.The parties will complete the appointment of the Parenting Coordinator, including any documents reasonably required to secure the appointment in accordance with these Orders within 28 days of the date of these Orders.
AND THE COURT NOTES Ms D has agreed to discount her fee per session to $200.00 per session to be shared between the parties equally.
37.Unless agreed otherwise in writing between the parties and the Parenting Coordinator, the parties will each attend on the Parenting Coordinator for their intake interviews and thereafter monthly for a period of six (6) months; and if after that six month period, the frequency of attendances can decrease to bimonthly or other frequency as recommended by the Parenting Coordinator.
38.The fees, disbursements and other charges of the Parenting Coordinator will be shared equally by the parties.
39.Either party is at liberty to apply to the Court if either party fails to comply with the Recommendations or terms of appointment of the Parenting Coordinator, and the Recommendations and reasons for such Recommendations shall be available as evidence to be produced by either party on any such application to the Court.
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 a pseudonym Eggleston & Hackett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). Note: The form of the order is subject to the entry in the Court’s records.
REASONS FOR JUDGMENT
Judge Taglieri
These are parenting proceedings concerning a child X, born in 2010 (“the child”). The proceedings were commenced in October 2020 by the step-father Mr Eggleston (“the father”) and the mother Ms Hackett (“the mother”) had not appeared on at least three case management hearings in 2022.
On 24 August 2022, I made orders that the matter would proceed either by defended hearing or undefended hearing on 10 October 2022 if the mother did not appear at that time.
The mother did appear at the defended hearing on 10 October 2022, but had not complied with trial directions. The Independent Children’s Lawyer (“the ICL”) informed the Court that the mother did not seek an order that the child live with her and that this reduced the issues in dispute. She suggested that in order to facilitate the hearing, I give leave for the mother to give some oral evidence. This was not opposed and so the evidence was led by the ICL about the mother’s current circumstances and what she sought by way of parenting orders.
The mother’s evidence
In summary the evidence of the mother elicited either from the ICL or questions I posed was to the following effect:
·She will remain living in the Hobart area in the medium term;
·She is in a relationship with Mr E and lives with him at a rental property in Town F;
·The home shared with Mr E is a four bedroom property at Town F, which is also shared with Mr E’s brother, Mr G, with whom he gets along well;
·The rental property has a self-contained flat, which is temporarily occupied by the landlord/owner of the property who will be returning to live overseas. The flat is usually occupied by Mr G;
·The mother has spent considerable time with the child, despite him being in the primary care of the father since around 2020, but she says that her ability to see the child has been curtailed at times and recently, when the father became aware of her relationship with Mr E;
·She has reluctantly agreed to an order that the child live with the father;
·She agrees there has been extensive conflict between the parties, but she relates this to the father’s control and family violence;
·See asks that the Court make orders that the child spend alternate weekends in her care;
·The father has not complied with the interim orders of the Court;
·She considers that the father has sought to exclude her from the child’s care arrangements and they have at times, but not always disagreed, about them;
·Given the high level of conflict between them she considers changeovers should occur outside a police station or at the child’s school;
·She does not support the use of the B Children’s Contact Service for all changeovers, because this would be upsetting and difficult for the child because there are always different staff and arrangements, with which the child does not cope;
·She accepts that she has been involved in conflict with the National Disability Insurance Service and the child’s school, but that was because the school had not been properly supporting his needs and she was acting to be protective of him and to advocate for him;
·She would agree to use of an electronic communication app to limit opportunity for conflict with the father;
·The mother would agree to engage a parenting coordinator and budget for 50 per cent of the cost of the service if the Court makes an order for such appointment;
·The mother will agree to obtain a mental health care plan to enable her to receive psychological counselling to assist with the stress of these proceedings and the impact of what she says was family violence or controlling behaviour by the father;
·The mother would agree to an order that the parties be restrained from using illicit substances from 24 hours prior to when the child is in their care and during any time she has his care; and
·She opposed an order that the father have sole parental responsibility because she felt this would lead to her being further marginalised and excluded from the child’s life.
After the mother had given this evidence, the father’s solicitor was given the opportunity to question the mother, but did not do so.
It was relatively clear that the mother was prepared to broadly accept many of the recommendations made by the Court Child Expert[1] in the Family Report dated 13 December 2021 and the orders that the ICL would be recommending should be made.[2]
[1] Family Report at [112] to [115].
[2] Case outline of ICL filed 7 October 2022 at pages 9 to 12.
In particular, the mother did not pursue an order that the child live with her and instead she sought orders that the child spend alternate weekends with her. The mother opposed an order that the father have sole parental responsibility for the child.
In light of the mother’s position, I stated that the Court would need to proceed by hearing relevant evidence about the limited issues still in dispute. These issues were noted to be:
(a)What order should be made about parental responsibility?
(b)Whether the Court should make an order for the appointment of a parenting coordinator and, if so, how the cost of the same would be met;
(c)How time with the mother, which had not occurred recently, would be progressed given her new living conditions; and
(d)What orders should be made for changeovers.
I also made some preliminary observations concerning the issue of parental responsibility based on what was contained in the father’s case outline,[3] the ICL’s case outline and the mother’s evidence. I noted that the mother had been the primary carer for the child until 2020, there appeared to be considerable evidence about mutual conflict between the parties, but also evidence that at times the parties appeared to work together for the benefit of the child.
[3] Filed 5 October 2022.
If those observations were valid, I remarked that there was some prospect of effective co-parenting and child-focussed decision making. I raised whether the parties may consider as an alternative to one party having sole parental responsibility. That being, that they agree to an order for equal shared parental responsibility, with strict terms providing for how decision making is to be jointly taken. But ultimately providing that because it was agreed the child would primarily live with the father, he have authority to make the final decision.
I outlined the terms of such an order that may be appropriate and provided the parties with a draft for consideration.
The ICL suggested that the Court Child Expert next give evidence about the issues in dispute, as her views needed updating noting the mother’s evidence. This course was not opposed and I adjourned the hearing until 1:30pm for that purpose.
Court Child Expert’s evidence
The Court Child Expert, Ms H, gave evidence led by the ICL after the mother’s evidence was summarised.
The Court Child Expert was asked whether, in light of this evidence, she considered it remained in the child’s interests to live with the father and spend time with the mother on weekends fortnightly, being the view expressed in her Family Report dated 13 December 2021.[4] The Court Child expert was very clear that remained her view.
[4] At [113].
The Court Child Expert was asked about recommendations she had about the mother spending time with the child during school holidays. She stated that, in her view, time between them could increase to an additional two nights during school holidays each week of the term school holidays, meaning two blocks of four nights. The Court Child expert considered that this would not be “a significant adjustment" for the child because, notwithstanding his particular vulnerabilities, she considered he would cope because of the strength of his relationship with the mother.
The ICL asked whether her views would be different if the mother lost secure accommodation. In response, the Court Child Expert agreed with the proposition put by the ICL that, in that case, if the mother gave notice to the father within a reasonable time of any change in her living arrangements, it would be reasonable for the mother to continue having day time or overnight periods with the child at an alternative location. She agreed that the alternative location and arrangements would need to be supported by the father and well-planned by the mother, so the child would more likely adjust and cope with the changes.
In explaining this evidence, the Court Child Expert stated that it was an issue of needing to weigh up the detriment to the child of not having an ongoing contact arrangement with the mother, against the possible impact of managing a different environment for the child.
When asked about the various change over options, the Court Child Expert gave very helpful evidence which was logical and convincing. She stated that the best arrangement was one that would avoid contact and conflict between the parents. This appeared to be for school-based changeovers when the child was attending school. On non-school days, the next preferable change over arrangement was the B Children’s Contact Service and, if it was not available, a public place such as McDonald’s would be preferable to outside a police station. The latter had no advantage over other options and was considered undesirable, because often the stations are not manned.
Noting the emphasis in the Court Child Expert’s report, evidence and recommendations, on the importance of avoiding the child being exposed to parental conflict, I enquired whether she was able to comment on what she perceived to be the cause or contributing factors to apparent mutual parental conflict. The Court Child Expert stated that there were two main contributors: first the mother’s mental health and borderline personality disorder traits which meant that her capacity to cope with stress and avoid conflict were limited; and, second, the father’s level of control which was necessary for him to manage parenting arrangements, but which was perceived by the mother as controlling of her. However, the Court Child Expert added that sometimes the respective parties’ vulnerabilities enabled common viewpoints and this led to cooperative alliance absent of conflict.
The Court Child Expert agreed with the proposition put by the ICL that there would be benefit in the mother being ordered to have mental health supports. The Court Child Expert also considered this would be helpful for the father.
Regarding the possibility that the Court would make a parenting coordination order, the Court Child Expert indicated that she was not aware of any persons in Tasmania who offered this service, but generally they are considered to be very helpful in supporting parents manage implementation and effective operation of court orders.
The Court Child Expert stated that she understood the persons who undertook these roles had specialised backgrounds in family law and undertook particular training, such as in counselling or mediation, to equip them with the skills required to be a parenting coordinator.
The Court Child Expert stated that she had not had experience in gauging or assessing the benefits of such appointments and that she considered that there may be more benefit in these parties engaging with either Autism Tasmania or the Australian Childhood Foundation to learn to be more aware of how their conflict is experienced by the child and to cause improvement in how they interacted. Nevertheless, she agreed that parenting coordinators are particularly helpful to establish capacity between the parties to navigate the meaning and effect of orders made by the Court.
When questioned by counsel for the father, the Court Child Expert stated that it was preferable for all changeovers to occur at the same place, with the first option being at the school as it is place with which the child is comfortable. Her assumption was that the alternate weekend time would be from Friday to Monday, and so both changeovers could occur at school. If, as on the father’s case, changeover was to occur on a Sunday then the B Children’s Contact Service would be preferable to McDonald’s as it is a more settled and less distracting environment.
After hearing from the Court Child Expert, I was informed that all parties were in agreement with the Court making an order about shared parental responsibility in accordance with the draft order I had circulated through my Associate.
This left fewer issues for determination, being those referred to at [8(b)] to [8(d)] above.
The Applicant’s case
The Applicant gave evidence about the disputed issues. In summary, he stated:
·He did not see a particular need to appoint a parenting coordinator and objected to paying the cost of the same based on his limited income;
·That if required to pay for half the cost of the parenting coordinator, even at a discounted rate of $300 or $200 each month, it would have the effect of placing him in financial hardship and deprive the child of having holidays away and special outings/activities;
·That because the parties had agreed to clear terms for the order about parental responsibility, the use of an alternate dispute resolution service would be used without cost and, in any event, dispute was not likely to arise;
·The cost impost on him would be significantly worse if the parties were required by order to also use a communication app as suggested by the ICL;
·Cost aside, he could see that there could be benefit to the parties using a parenting coordinator to navigate misunderstandings or disagreement about the implementation of the orders and equal shared parental responsibility;
·His income is from a Centrelink Disability Pension and Family Tax Benefit which, after fixed expenses of rent, left a total about $860 per fortnight. He sold products and earned about $150 per month, but then quickly stated it varied and was hard to predict. When cross-examined, he then disclosed income by way of an additional $600 per year as a lump sum Carer Supplement;
·His regular expenses were food of $350 per fortnight, petrol of $80 per fortnight, dog food of $80 per fortnight, internet of an unstated amount, weekend activities of an unstated amount, and that he tried to save about $200 per fortnight;
·Regarding changeover arrangements, they ought not occur at the school because of the level of dispute and conflict the mother had with the schools and the impact of this on the child; and
·Changeovers should occur at the B Children’s Contact Service, but he agreed with the evidence the mother had given that the child would need time to adjust to the use of that service.
Mr E’S Evidence
I considered it important to hear evidence from the mother’s new partner Mr E, as I was concerned about his attitude to the issues arising in the parenting proceedings. Arrangements were made for this to occur, without objection from any party.
Given that Mr E was giving evidence at my request, without objection, I posed a number of relevant questions to him. The ICL and Counsel for the Applicant were permitted to cross-examine Mr E. Only the ICL did so.
Mr E gave evidence in summary, as follows. He is aware that the child is 12 years of age and that he is diagnosed with autism spectrum disorder. He is also aware that the mother and the father are in heated disagreement over the arrangements for the child, to the point of needing the Court to tell them what to do in the child’s best interests.
As to his own circumstances, Mr E said that he separated amicably from his wife a few years ago. He has two children, 14 year old twins, who live with their mother and spend every second weekend with him. He stated that his children have “no complaints” and he imagines it would be the same for the child, aside from making accommodation for his special needs.
He admits that the mother has a temper, and that he believes it is understandable that she gets angry and upset given the current proceedings. He stated that he feels that he is the “only person in her corner”. From his observations, she is overwhelmed by the situation.
I asked Mr E whether he had given any thought to the practical considerations of the child spending time with the mother at his property. He responded that he had. Financially it would be easier for the child to spend time with the mother on the weekend when his children are not spending time with him, however he believes it would also be beneficial to the child to spend time with children his own age as well. He said his children would welcome the child “with open arms” and be friends with him, but also acknowledged that it would be overwhelming for the child to have so many changes at once.
Mr E is aware of the difficulties of the mother’s relationship with the father as she has told him about it. However, he acknowledged that his information comes solely from the mother’s perspective and that he has not met the father.
When I asked about the mother’s drug use, Mr E said that he is aware that the mother smokes cannabis of an evening to help her sleep. In his experience this does not affect her functioning the next day, especially noting that she is motivated to look for work.
Mr E told the Court that he understands spending time with the mother at his property will be a considerable change for the child, who has issues with adjusting to change. He said that he will need to learn the child’s “quirks” and “triggers” to help him adjust and feel comfortable. This understanding comes from previous employment where he was a manager to colleagues with autism, and that in his experience behaviours that can appear to be anger actually stem from frustration and should be addressed accordingly.
Counsel for the Independent Children’s Lawyer further questioned Mr E about how he would manage introducing the child to the property, to him, and to his children. Mr E’s response was that it would be best to commence with a weekend when his children are living with their mother so that there are not too many new people at the home. He was confident that his children’s mother would be accommodating of a change to their usual arrangements, so the child’s time with the mother could occur on whatever weekend the Court ordered. Further, he gave evidence that he was prepared to absent himself from the property on the weekends the child is there and then be introduced once the child is familiar with the new environment at the mother’s home.
After receiving Mr E’s evidence, counsel for the father asked the Court to read and consider the documents referred to in the Applicant’s Case Outline and I have done so. She also tendered documents into evidence from the ICL’s tender bundle as Exhibit A-1, being:
·Page 54: Department of Education records, home visit notes dated 27 February 2017;
·Page 73: Department of Education records, student notes from 23 February 2017 to 3 August 2018;
·Page 83: Department of Education records, record of communication with the mother dated 12 and 16 June 2020;
·Page 87: Department of Education records, record of communication with the mother and father dated 11 September 2019 to 26 February 2020;
·Page 90: Department of Education records, record of communication with the mother dated 27 January 2018;
·Pages 98-99: Department of Education records, internal email dated 31 July 2017 regarding the child’s attendance at school;
·Pages 114: Child Safety Services records, conversation summary report dated 15 October 2020;
·Page 135: Child Safety Services records, conversation summary dated 17 July 2020;
·Page 148: Child Safety Services records, incident report dated 4 August 2017;
·Pages 206-239: Tasmania Police records, Family Violence Management System entry … dated 9 September 2020;
·Pages 244-266: Tasmania Police records, Family Violence Management System entry … dated 25 July 2016; and
·Pages 275-284: Tasmania Police records, Family Violence Management System entry … dated 2 November 2013;
The ICL submitted that the Court should also receive a copy of the parties’ prior convictions. This was unopposed and the same have been received and marked Exhibit ICL-1. They appear at pages 168 to 180 of the ICL’s tender bundle.
Closing submissions
Agreed terms of orders
The ICL had prepared a minute reflecting the orders she recommended be made by the Court (a minute of order with 41 proposed orders).
In her closing submissions, she addressed all the proposed orders and indicated many were agreed, so sensibly-focussed submissions were made about what she understood to be disputed.
The ICL’s submissions about what orders she invited the Court to make are supported by the views of the Court Child Expert. In particular, the recommended orders about changeovers and progression of time, including in school holidays, is closely aligned to the evidence of the Court Child Expert about what was in the child’s best interests.[5] These views had not been challenged by counsel for the father.
[5] Referred to at [14] to [19] of these reasons.
Concerning the dispute about whether the parties should be required to engage a parenting coordinator, the ICL’s submissions were based on information and costings she referred to during the hearing which had been provided to her by the proposed coordinator, Ms D. This information had not been disputed or put in issue during the hearing.
Counsel for the father was invited to address the orders in the ICL’s minute and make submissions about those in dispute. The following of the ICL’s recommended orders were not opposed:
·Orders 1 to 4, providing for parental responsibility in accordance with the draft circulated during the hearing via my Associate;
·Order 5, concerning the child living with the father;
·Orders 6(b), 6(c), and 6(f) to 6(j), relating to the mother’s time with the child during the summer school holiday and alternate Christmas/Boxing Day, special occasions and mid-week phone communication between the child and mother;
·Order 7 relating to the child spending time with the father on Father’s Day and alternate Christmas/Boxing Day;
·Orders 8 to 16 inclusive, relating to changeover arrangements; and
·Orders 17 to 26, being various injunctions, restraint or responsibility orders.
Counsel for the father indicated that 6(a), 6(d) and 6(e) relating to commencing the child’s time as overnight time on 21 October 2022 and progression of the mother’s time to three nights each fortnight from Friday to Monday, was opposed. The terms of the draft orders in the ICL’s minute at Orders 27 and 28, were not agreed and variation was proposed. The proposed Orders 33 to 41 of the ICL’s minute, relating to appointment of and arrangements for a parenting coordinator, were opposed.
Recommended Orders 29 to 32 were not specifically addressed and I infer were not particularly opposed by the father.
The mother stated in effect that she agreed with the entirety of the orders recommended by the ICL as set out in the minute, including the proposed orders for appointment of a parenting coordinator. However, she stated that because she had not had Christmas Day with the child in the last two years, she would like to vary the proposal by the ICL as to which year the child spent Christmas Day with her. I took that to mean that she asked for Christmas Day in even years and Boxing Day in odd years.
Applicant’s submissions in opposition
The ICL’s recommended order for recommencement of the mother’s time with child and progression of it in Orders 6(a) and 6(d) were understood by me to be opposed because of the evidence about the child’s dysregulation and difficulties in adjusting to change. The father contended that it was in the child’s best interest for the mother’s time to recommence as day time only between 10am and 4pm on each of Saturday 22 October and Sunday 23 October 2022, then progress to overnight as recommended by the ICL in subsequent fortnights.
Further, the submission was made that the child’s time with the mother ought not extend to an additional night fortnightly once school commenced in 2023 because the mother had failed to ensure the child maintained his attendance at school at an acceptable level. This was said to be supported and established by the Education Department records tendered as part of exhibit A-1.
Initially submissions were made that the father opposed changeovers occurring at the school once the child was attending from Term 1 2023, on the basis of conceded conflict the mother had with service providers. Again the records tendered as part of Exhibit A-1 were relied upon in support of this.
However, as I noted and the ICL submitted, the orders for school changeovers from Term 1 2023 would only apply if the school agreed to support and facilitate this regime, as this was the effect of Orders 12 to14 inclusive of the ICL’s minute of recommended orders. If the school could not support the arrangements, the minute of orders provided for a default to changeover at the B Children’s Contact Service and, if it was not available, McDonald’s in Suburb C or the Suburb J Police Station. This having been noted, counsel for the father conceded that was so and did not pursue further submissions about changeover arrangements.
Relying on the father’s evidence, counsel for the father submitted that there was no need for an order appointing a parenting coordinator and that the cost of the same was prohibitive for both parties. In essence, the submission was that if there was a need to engage such a person and pay their fee, it would ultimately lead to detriment to the child in being deprived of trips, holidays or activities that can only be afforded because the father has been able to save some funds for that purpose from surplus income.
The submission made in opposing Order 27 of the ICL minute was that the order would entail risk of conflict between the parties at the school, which would be harmful to the child. The father proposed instead an order that the parent who has care of the child at the time of various school events attend only. I remarked that this would mean the mother never attended assemblies, parent teacher interviews or the like because her time with the child pursuant to the agreed minute of orders was weekend time only and communication by phone. This remark was also conceded and no further submissions about Order 27 were made.
The basis for seeking a variation to paragraph 28 of the ICL’s minute was that the father had a good and longstanding relationship with the general practitioner, who effectively was best placed to determine if he required psychological counselling or therapy. I observed that the general practitioner would not have had the benefit of evidence received in this case, nor the recommendations and views of the Court Child Expert. Further, necessarily the general practitioner would have taken the father’s history in abstract without reference to all the evidence before me. Having heard this observation and invited to respond, the submission was not pursued further.
Evaluation of the evidence
Background facts and facts not in dispute
Based on the affidavit material read for the purposes of the defended hearing, the Family Report, the case outlines filed by the ICL and father, the oral evidence of the Court Child Expert and the mother’s oral evidence, a number of facts relevant to determining what parenting orders should be made are either not in dispute or non-contentious. They are and I find as follows.
The father is not the biological father of the child and entered into a relationship with the mother in 2011 when the child was about four months of age.
The child is now 12 years old, diagnosed with autism and is largely non-verbal. He is a participant in the National Disability Insurance Scheme and currently attends K School.
Based on the collective evidence of the parties, family violence and criminal records and views of the Court Child Expert, the parties’ relationship was volatile and often characterised by conflict and dispute.
The parties finally separated in 2014, at which time the child remained in the primary care of the mother and spent time with the father as arranged between the parties. However, the dynamic between the parties remained conflictual and mutual allegations of family violence continued.
Notifications were also made to Child Safety Services at various times about the safety of the child in the mother’s care.
When the mother found herself without secure accommodation in around March 2020, Tasmania Police and Child Safety Services raised issues which led to the child living in the primary care of the father. The mother appears to have acquiesced to this course due to challenges she was facing personally and not coping with the convergence of parenting demands, parenting disputes and lack of housing.
Between March 2020 and October 2020, the parties’ interactions were conflictual and mutual allegations of family violence continued to be made in the context of disputes about the care arrangements for the child.[6] This led to the father filing these proceedings on 28 October 2020, seeking a recovery order and interim live with orders after the mother had not returned the child to his care.
[6] Exhibit A-1 at pages 206 to 239; mother’s oral evidence.
The proceedings have been before various judges and interim parenting orders having been made in respect of the child, the latest being interim orders made by me on 18 June 2021 following an interim hearing.
At the time of the hearing on 18 June 2021, the mother was residing in City L.
Since 18 June 2021, the parties have not always complied with court orders and the mother has had difficulty in securing stable accommodation and has moved between Hobart and the Region M of Tasmania.
Relating to the primary considerations in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) and other mandatory considerations in s 60CC(3) of the Act, the following findings are made on evidence either not put in issue or based on the evidence preferred from the Court and given by the Court Child Expert:
(a)Both parents have a meaningful relationship with the child;
(b)The mother does not pose an unacceptable risk of either physical or emotional harm, neglect or abuse to the child. This must be taken as conceded by the father as he agrees to an order for fortnightly unsupervised time between the child and mother;
(c)Both parties at various times have taken opportunity to participate in decision making about long-term issues about the child, have been the primary carer of the child for significant periods and have spent time with and communicated with him when they have not been the primary carer, despite the conflict between them;
(d)Both parties have at various times contributed to the financial support of the child, to greater or lesser extent based on their income and circumstances;
(e)The agreement that the child live with the father will avoid any change in day to day circumstances and continue stability for the child in that regard;
(f)The mother’s return to the Hobart area will ensure that she has capacity to regularly spend time with the child and her current living arrangements in the home shared with Mr E at Town F are suitable;
(g)Both parties have exhibited a strong desire to discharge the responsibilities of parenthood, but each in their own way experience limitations in this regard due to their own mental health or personality traits; and
(h)The limitations referred to at subparagraph (g) have both contributed to the disputes and level of conflict between the parties about the child in his presence because I prefer the views of the Court Child Expert and the family violence and criminal records tendered in evidence also support that view.
I initially had significant concerns about the current social and living arrangements of the mother. Her relationship with Mr E is new and he may have been unaware of the extensive and difficult history to the parenting dispute, the child’s special needs and mother’s mental health issues.
However, it transpired that he has a very reasonable, unbiased and in my view accurate understanding of the issues. Having heard the evidence of Mr E, I am satisfied that he will afford considerable personal and parenting support to the mother. He appears committed to his relationship with her and has a desire to promote her relationship with the child.
There is no basis to find that the mother and Mr E will be anything other than able to provide safe and suitable accommodation for the child when he spends time with the mother, given the description of the house in which they live and their circumstances there more broadly.
Legal Principles
In parenting proceedings, the paramountcy principle applies and the court is required to make orders that are in the best interests of the child/children.[7] Express direction is provided in s 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The court is to inform itself of the child’s best interests by the considerations in s60CC(2) and (3) of the Act.
[7] Section 60CA of the Act.
Section 60CC(2) requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in s 60CC(3) as relevant to the circumstances of any given case,[8] but there is no ranking of importance or order of consideration of the relevant considerations.[9]
[8] Goode & Goode [2006] FamCA 1346.
[9] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1
The evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[10]
[10] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
Determination
There is disagreement about minimal issues in this case. Where the parties have reached agreement about the orders they invite the Court to make, I am satisfied that the agreed proposed orders are in the best interests of the child given the findings made at [55] to [69] and the legal principles referred to above.
Based on the findings at [55] to [69] of these reasons, there is no reason to precipitously exclude the mother from decision making about major or long-term issues for the child. Instead, and because the parties have some demonstrated capacity to make joint co-parenting decisions for the child, they ought to share parental responsibility, subject to a fall-back safety mechanism that reverts final decision making authority to the father as the primary carer with whom the child will live.
Further, in justification of the conclusion at [74], I note that the Family Violence Management System and criminal records in evidence reinforce the view of the Court Child Expert and the submission by the ICL, which I accept, that both parties have contributed to the level of dispute and conflict about the child. Accordingly, it is not in the child’s interests to completely exclude the mother from major and long-term decisions as she has demonstrated capacity to make those decisions for a considerable time in the past. It is also apparent that she is fiercely protective of the child, which will ensure his interests are promoted providing she communicates respectfully.
Although the mother’s time with the child will be less than that which she had experienced before the events of March 2020, it is self-evident from her position at the defended hearing and the fact that in 2020 she acquiesced to the child living with the father, that she recognises the limits in her capacity to cope with the extreme demands of parenting the child, who has high needs. In addition, the time the child will have with her pursuant to the agreed orders will be substantial because:
·it is more likely she will cope better when she does have the child in her care and they will have positive and enjoyable time; and
·the time will be regular and sufficient for the child to maintain a meaningful relationship with the mother, particularly given the existing strength of the relationship as evidenced and emphasised by the Court Child Expert; and
·there is prospect of additional time by agreement, noting that the parties approaches are capable of aligning.
The mother has struggled to manage her own mental health and cannabis use at times, leading to a somewhat erratic lifestyle and lack of secure accommodation. Although the mother attributes her mental health difficulties solely to the parenting dispute and the controlling behaviour of the father, the documents before the Court and view of the Court Child Expert suggest it is multi-factorial. Regardless it is undesirable for the child to have lack of stability, especially given his special needs.
The father is able to provide a stable and secure environment for the child to live, in contrast with the history of the mother’s insecure housing, mental health challenges and at times erratic lifestyle.
Accordingly, living with the father where he is, based on the evidence before the Court, settled, safe and content is in his best interests.
The mother is to be commended for accepting the recommendations of the Court Child Expert and ICL in this case. This demonstrates, in my view, that she has insight and capacity to be reasonable and child-focussed, although at times of stress and mental health decline that is compromised.
Although the father has been the primary carer since 2020, I am persuaded by the evidence of the Court Child Expert that his need to exercise control as a coping mechanism has led to him excluding the mother at times when she ought to have been included.
For example, while stating the child loved the mother and had a meaningful relationship with her, he chose to ignore the evidence of the Court Child Expert about the child being able to cope with increased time with the mother and a change in living arrangements. This led to him adopting a position in opposition to the ICL’s proposed orders about progression of the mother’s time.
The orders for the mother’s time with the child will be consistent with those recommended by the ICL. Those recommendations are supported by the views of the Court Child Expert. The alternate arrangement suggested by the father, in my view, is not necessary and reflects the controlling approach he takes to the arrangements for the child. I consider the attitude of the father to questions about issues relating to the mother’s time with the child and parenting coordinator to be contradictory or reflective of inflexible thinking and communication.
The mother’s living and accommodation arrangements with the child are suitable on the basis of evidence she and Mr E gave, which was not disputed. I do not discount the possibility that the relationship with Mr E will not endure, but if it does not, it is still in my view necessary that the mother have regular fortnightly time with the child in accordance with the arrangements about which the Court Child Expert gave evidence during her oral evidence. The father should not overtly or passively resist this.
The mother made a submission that she wished to have the child spend time with her on this Christmas coming. The orders proposed by the ICL are consistent with that and are agreed by the father.
By virtue of the terms of the agreed order about parental responsibility, both parties are obliged to follow a clear, child-focussed and co-operative process, for the purpose of making joint decisions about the major and long-term issues for the child. The prospect of the process being successful will be greatly assisted in my view by an order requiring appointment of a parenting co-ordinator, for the reasons given by the Court Child Expert.
Further, I am persuaded that the history of conflict and each individual’s personal factors that contribute to the conflict warrant an order for appointment of a parenting co-ordinator. The parenting coordinator will assist, coach and guide each party to maximise the chance that they will abide by the terms of the Court’s orders and make child-focussed joint decisions. Further, if difficulty arises in that regard, or in understanding the effect or requirements of the orders, those difficulties are more likely to be resolved before they become entrenched, thereby avoiding further proceedings[11].
[11] Eg Gill & Ingram [2022] FedCFamC2F 109.
Further, I do not accept the claims that the father will suffer financial hardship if required to pay for half the cost of a parenting coordinator. His evidence ultimately disclosed that he had surplus income permitting savings and he had income from a small home sales business. He initially did not disclose income from a Carer Supplement which was only admitted when directly cross-examined about it by the ICL.
I consider the claim that he would fall into financial hardship to be without foundation given the father’s own evidence referred to at [27] of these reasons. This conclusion is reinforced by:
(a)His evidence that three monthly visits were likely to be affordable but not bimonthly visits, when his share of the difference between these positions was only $200 for a year; and
(b)With the child spending time with the mother every second weekend, his expenditure on outings and activities for the benefit of the child will decline.
The submissions objecting to or seeking orders amending the terms of the ICL’s recommended Orders 27, 28 and 33 to 41 are rejected as being without merit, noting the reasons above.
To the extent that the father’s case involved a contention that changeovers should all occur at the B Children’s Contact Centre, I do not consider that position has merit. I accept the views of the Court Child Expert about the school being the best solution for changeover if the school will facilitate this and on occasions when it is not, the B Children’s Contact Centre be used as a fall-back. However, there are practical constraints around the B Children’s Contact Centre, which may mean they cannot facilitate the changeovers. In those cases, to avoid overcomplicating orders and the difficulty deposed to by the Court Child Expert about using a police station, I consider the changeovers should occur in the carpark of McDonald’s in Suburb C.
The father opposed an order that he be required to obtain a mental health care plan from his general practitioner for the reasons submitted at [54]. I consider the submissions to be without merit. The evidence before the Court includes concession of depression at times on the father’s part and further the Court Child Expert attests to controlling behaviours as a coping mechanism. This evidence collectively warrants attention on his part to his mental health with the aim of improving the prospect that it may interfere with effective co-parenting. I do not accept that the father’s general practitioner is better placed to assess the need for such treatment. I have had the benefit of comprehensive evidence from the Court Child Expert and knowledge of the records relating to family violence and criminal conduct.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 17 October 2022
5
0