Federal Circuit and Family Court of Australia
(DIVISION 1)
English & Eklund [2022] FedCFamC1F 621
File number(s): PAC 3379 of 2019 Judgment of: HANNAM J Date of judgment: 24 August 2022 Catchwords: FAMILY LAW - Where substantial agreement reached about child’s living arrangements and exercise of parental responsibility and the ambit of the dispute centred on the child’s relationship with the father and how the Court is to approach her time with him on a final basis - Where each parent’s parental capacity, their interactions with the child and the ability of each parent to meet the child’s alleged complex needs also considered - Where there is evidence to suggest that the mother was a gatekeeper in relation to most aspects of the child’s lifestyle including her diet and relationship with the father - Where concerns held by each parent about the other parent’s attitude and actions towards the child’s health and overall care were not elevated to matters of unacceptable risk of harm arising from abuse or neglect from which the child requires protection - Where expert gave strong opinions and recommendations about the need to re-establish the child’s relationship with the father - Where expert also expressed views and made recommendations regarding child’s state of health and health regime - Where final orders proposed by the ICL and supported by the father are in the child’s best interests as it accords with expert evidence - Orders made accordingly. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D Cases cited: Chapman and Palmer (1978) FLC 90 – 510
English & Eklund [2021] FamCA 89
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405Division: Division 1 First Instance Number of paragraphs: 217 Date of last submission/s: 9 June 2022 Date of hearing: 23 – 26 May 2022 Place: Parramatta Solicitor for the Applicant Litigant in person Counsel for the Respondent Mr Tockar Solicitor for the Respondent Genlaw Pty Ltd Counsel for the Independent Children’s Lawyer Ms Druitt Solicitor for the Independent Children’s Lawyer Legal Aid NSW ORDERS
PAC 3379 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ENGLISH
Applicant
AND: MS EKLUND
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
24 August 2022
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the child X born in 2012 (“the child”) are discharged.
2.The parents are to hold equal shared parental responsibility for the child.
3.The child is to live with the mother.
Child’s time with the father
4.From the date of these orders until the commencement of Order (7), the child is to spend time with the father as agreed in writing between the parents, and in default of agreement as follows:
(a)Each alternate Sunday from 9am until 5pm for a period of six weeks;
(b)From the conclusion of Order (4)(a), each alternate weekend on Saturday from 9am to 5pm and Sunday from 9am to…
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- English & Eklund [2022] FedCFamC1F 621
- Case
- [2022] FedCFamC1F 621
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CaseChat Overview and Summary
The case before the court involves a dispute between the mother and the father regarding the best parenting arrangements for their child. The court was tasked with determining which of the two proposals submitted by the mother and the Independent Children's Lawyer (ICL), supported by the father, was in the child's best interests. The mother's proposal involved the child living with her and having limited contact with the father, while the ICL's proposal suggested the child live with the mother but spend more time with the father.
The primary legal issue the court had to decide was which parenting arrangement would best serve the child's interests. This involved weighing the recommendations of the expert, who had interviewed the family and observed the child with both parents, against the views and preferences of the parties and the child. The court also had to consider the child's relationship with each parent, the impact of the parents' separation on the child, and the child's health and well-being.
The court found that the child's relationship with the father could be more meaningfully rebuilt with a quicker transition to increased time with him. This conclusion was based on the expert's evidence, which highlighted the child's preference for limited contact with the father and the negative impact of the father's behaviour on the child. The court accepted the expert's recommendation, noting that the ICL's proposal aligned with this evidence and was in the child's best interests. The court also made minor adjustments to the ICL's proposal, such as modifying the order for family therapy to reflect that it had already commenced.
The court ordered that the child live with the mother and that the father have increased time with the child, in accordance with the ICL's proposal. The court also ordered that the parents equally share parental responsibility for the child and that family therapy continue as ordered. These orders reflect the court's determination that the ICL's proposal best serves the child's interests by facilitating a more meaningful relationship between the child and the father.
The primary legal issue the court had to decide was which parenting arrangement would best serve the child's interests. This involved weighing the recommendations of the expert, who had interviewed the family and observed the child with both parents, against the views and preferences of the parties and the child. The court also had to consider the child's relationship with each parent, the impact of the parents' separation on the child, and the child's health and well-being.
The court found that the child's relationship with the father could be more meaningfully rebuilt with a quicker transition to increased time with him. This conclusion was based on the expert's evidence, which highlighted the child's preference for limited contact with the father and the negative impact of the father's behaviour on the child. The court accepted the expert's recommendation, noting that the ICL's proposal aligned with this evidence and was in the child's best interests. The court also made minor adjustments to the ICL's proposal, such as modifying the order for family therapy to reflect that it had already commenced.
The court ordered that the child live with the mother and that the father have increased time with the child, in accordance with the ICL's proposal. The court also ordered that the parents equally share parental responsibility for the child and that family therapy continue as ordered. These orders reflect the court's determination that the ICL's proposal best serves the child's interests by facilitating a more meaningful relationship between the child and the father.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is which of the proposals submitted by the mother and the ICL (supported by the father) respectively, is proper having regard to the child’s best interests as the paramount consideration.BACKGROUND Much of the relevant background to the proceedings including circumstances of the parties’ relationship and separation is canvassed in an earlier judgment delivered on 26 February 2021 (“the February 2021 Judgment”)[1]. That judgment concerns interim orders that the child live with the mother and spend time with the father each alternate Sunday supervised by a contact service (“the February 2021 interim orders”). The February 2021 Judgment is incorporated into and to be read with these Reasons. [1] English & Eklund [2021] FamCA 89. Assuming familiarity with the February 2021 Judgment, it suffices to say that the mother and father who are in their 40s met in 2005 and began living together in the following year. At that time the mother had another child from a previous relationship who formed part of her household. In 2012, the only child of the parties’ relationship was born. In August 2015 the parties separated and a few months later the mother began a new relationship, though she continued living in the family home. The mother then discontinued the new relationship and reconciled with the father in late 2015. At around this time, the parties observed that the child was frequently suffering with diarrhoea and stomach cramps and a general practitioner and dietician were of the view that the child was suffering from food allergies and recommended that she follow a more limited diet. It is also the mother’s assertion that around this time the child began exhibiting concerning behaviour in settings such as at childcare. The parties separated on a final basis in January 2017 but both initially continued living in the family home. The mother moved to a new home a few months after separation, taking both of her children with her. Following separation, the parties reached agreement for the child to spend time with the father each alternate weekend and half of each holiday period. However, there is no dispute that despite this arrangement there were ongoing disagreements between the parties regarding the child’s diet and the mother’s contentions about the child’s ill-health. The child was exposed to significant conflict between the parents particularly at changeover. In around mid-2017 the mother began a relationship with a new partner. Shortly thereafter, when the child was almost five the mother ceased making the child available to spend time with the father. From around this time, the mother began taking the child to a range of health professionals and practitioners in relation to concerns about the child’s physical health, and in particular her diet. From mid-2017 there were lengthy periods of time in which the child spent no time with the father, including from around July to December that year. The parties then reached agreement about the child’s parenting arrangements which was embodied in a parenting plan but this was often not adhered to.
Evidence
Evidence Before The Court
The ICL otherwise submits that the Court would not accede to the mother’s “very cautious approach” to the child’s overall care arrangements which is, as noted, inconsistent with the expert’s opinion.THE expert’S evidence In her report dated 19 August 2021 the expert expressed strong opinions and made numerous recommendations based on interviews with the family, observations of the child with each of her parents and other members of the mother’s household[13], and a review of various documents filed with the Court and produced on subpoena. [13] The mother’s current de facto partner, Mr F, and his son. Of the various matters considered by the expert in her report, the two most relevant in determining the current dispute between the parties relate to the final parenting arrangement the expert recommends is in the child’s best interests in light of the child’s relationships with each parent, and the state of the child’s health and its history. These matters are discussed below noting that at the final hearing the expert remained firm in her views and opinions and was not challenged significantly by either party or the ICL about same. The child’s relationship with both parents and the recommended final parenting arrangement When assessed by the expert in March 2021, the child was living with the mother and was not spending any time with the father despite orders in place providing for some supervised time to occur. At the time, neither party proposed a change in the child’s residence and the single most significant issue to be resolved between them was how much time the child should spend with the father on a final basis. The expert reported that the mother expressed concern that if the child resumed spending substantial time with the father the child could “go backwards” and “regress”. The expert reported that the father was concerned that he was having very limited contact with the child and queried the impact on the child of potential negative influence from the mother. The expert reported that when interviewed, the child indicated that she would prefer having no time with the father rather than spending some time with him. The child reportedly stated that the father is “scary” and is “always super mean to me” and gave examples of the father being “mean” as yelling at her about various things, that he had hit her on the bottom with his hand and had touched and taken photos of her genital area (which formed the basis of sexual abuse allegations made against him in the past). Although the expert reports the child was able to volunteer some positive memories of the father in her interview, at one point she could not recall the father’s name without prompt from the mother and was only agreeable to seeing him as part of the assessment because of the presence of the expert in the assessment room. The expert also reports that during the assessment the child also expressed a desire to have no telephone contact with the father. The expert explained that the child communicated a dislike for the father and stated that she would “rather do other stuff with [the mother]”. When questioned about what the mother thought of the father, the child told the expert that she did not think that the mother “really likes him” and conveyed that the mother told her that “[the father] became really mean when I was born. He yelled at mum, [the child’s half-sibling] and me” and added that the father “loves me but somehow was mean”.
Decision
Reasons for decision
Otherwise, there are in my view no compelling reasons to support the conclusion that a change in the child’s surname as proposed by the mother is proper and in the child’s best interests.CONCLUSION As previously noted, both parties and the ICL agree that it is proper and in the child’s best interests that the parents equally share parental responsibility for the child and that the child live with the mother. Accordingly, I make orders in these terms. I also make orders that the child spend time with the father in accordance with the ICL’s proposal with which the father agrees. In short, having regard to the primary and additional considerations as discussed above, and attaching weight to the expert’s evidence, I consider the child’s interests are best served with a quicker transition of time with the father as it would present the best opportunity for the child’s sense of the father to develop and her relationship with him to be more meaningfully rebuilt. In relation to the balance of the ICL’s proposal, those orders are equally in the child’s best interests as it accords with the evidence of the expert which I accept for the reasons given. The only other variation to the ICL’s proposal relates to the order for family therapy. This proposed order was framed as if this therapy had not yet commenced. It is slightly varied to take into account the fact that this therapy commenced pursuant to the interim orders made when judgment was reserved and is to continue as ordered rather than to commence. For the foregoing reasons I make the orders set out at the forefront of this Judgment.
Ratio Decidendi
Legal Principle Established
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