Felix & Felix

[2023] FedCFamC1F 1041

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Felix & Felix [2023] FedCFamC1F 1041

File number(s):	BRC 14241 of 2021
Judgment of:	BAUMANN J
Date of judgment:	13 November 2023
Catchwords:	FAMILY LAW – PARENTING – Best interests – Where the parents have been involved in ongoing litigation and conflict for over five years – Where final long term supervised time orders were made by consent of the parties – Where both parents raised issues of risk within their material – No findings made as to issues of risk
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Moose & Moose (2008) FLC 93-375
Division:	Division 1 First Instance
Number of paragraphs:	13
Date of hearing:	13 November 2023
Place:	Brisbane
Counsel for the Applicant:	Mr J Bunning
Solicitor for the Applicant:	KLM Solicitors
Counsel for the Respondent:	Mr A North
Solicitor for the Respondent:	Best Wilson Buckley Family Law
Counsel for the Independent Children's Lawyer:	Ms D Pendergast
Solicitor for the Independent Children's Lawyer:	Forest Glen Lawyers

ORDERS

BRC 14241 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FELIX

Applicant

AND:

MS FELIX

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	13 NOVEMBER 2023

THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

1.That all previous parenting Orders and parenting plans are discharged.

Parental responsibility

2.That the mother has sole parental responsibility for making decisions relating to the major long-term issues, including but not limited to medical and educational matters for the children, X born 2010 and Y born 2013 collectively (“the children”).

3.That the mother must keep the father informed of any decisions that are made about the major long-term issues, care, welfare or development of the children and in this regard she must:

(a)advise the father as to the decision that is needing to be made, and provide all relevant information or documentation;

(b)take into account the view of the father; and

(c)advise the father of the decision that is made.

4.That the parent that has the care of the children is to have day-to-day responsibility for the children’s care, welfare and development, when they are in that person’s care.

5.That the father is hereafter restrained from attending upon or communicating with any of the children’s treating practitioners or doctors, without prior written agreement between the parties or Court Order.

Living arrangements

6.That the children will live with the mother.

7.That the child Y spend time with the father for any time or arrangement as agreed between the parties in writing, and failing agreement:

(a)each alternate weekend at B Contact Centre, or such other Contact Centre as agreed, for up to two (2) hours for four (4) years from the date of these orders; and

(b)after four (4) years, as she wishes.

8.That X spend time with the father as he wishes.

9.That the parents share equally the cost of the Contact Centre.

10.That the time supervised by the Contact Centre may be undertaken using an off-site supervision service offered by the Contact Centre.

Communication

11.That the children be at liberty to call the parent that they are not living with at all reasonable times.

12.That the father be at liberty to send both children gifts and cards and the mother shall ensure the children receive such gifts and cards.

13.That the father and the mother will communicate by way of the 2Houses Parenting Application.

14.That during the time the children are spending with either parent, that parent will:

(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b)speak of the other parent respectfully and discourage the children from speaking of them disrespectfully;

(c)not denigrate or insult the other parent in the presence or hearing of the children;

(d)not be complicit with others in denigrating or insulting the other parent in the present or hearing of the children; and

(e)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children

15.That the parents must keep one another informed of:

(a)their residential address;

(b)their email address;

(c)their landline and mobile telephone numbers; and

(d)advise via the 2Houses Parenting Application of a change to the above within forty-eight (48) hours of such change occurring.

Other orders

16.That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about:

(a)the children’s educational progress;

(b)other school-related activities;

(c)supply each parent with copies of school reports, photographs, certificates and awards obtained by the children;

(d)the cost of the above, if any, be borne by the requesting parent; and

(e)the father not question Y about why X is not attending time.

17.That the mother will:

(a)keep the father informed of the names of any treating medical or health practitioners who treat the children and provide information as to their opinion in respect of the children’s health conditions and treatment; and

(b)inform the father as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.

THE COURT ORDERS ON A FINAL BASIS:

18.That the Independent Children’s Lawyer be discharged.

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 Felix & Felix has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. When the father, Mr Felix born in 1981 and the mother, Ms Felix born in 1981 got together, they were both approximately 25 years of age.  They no doubt hoped for a long and happy relationship.  The relationship was blessed with two children:  X, who was born in 2010, and Y was born in 2013.  Sadly for the children, and probably for the parties, their decision to commence a relationship was not rewarded with longevity, rather their relationship came to an end in difficult circumstances on 27 June 2014.  What has then followed for this couple and their two delightful children has been ongoing litigation, conflict, disputes – many of it, maybe not initially, known to the children, but certainly as the children have got older the conflict is well known to them.  They had final consent Orders made by Judge Lapthorn on 1 August 2017.

2. Those Orders fell into disarray within 12 months, causing the father to commence contravention proceedings, which were resolved by a parenting plan in October 2019.  Supervised time occurred.  A family report from a family consultant was obtained.  They had further legal aid conferencing and, by October 2020, had decided to enter into an amended parenting plan.  Sadly, almost on an annual basis, as is reflected in the history by October 2021, the father felt that time he was spending with his children should be unsupervised.  He brought an application, which is at the forefront of what is before me today.

3. The father’s initial Application filed on 26 October 2021 was for unsupervised time.  The mother then, as she does now, to some degree, has always maintained that the children’s time with the father should be supervised.  Despite two reports by Dr C; a family report writer and psychologist and a psychiatric assessment of each party by Dr D, and no doubt significant involvement by the parties and their lawyers, including the Independent Children’s Lawyer – who has been in this matter for some time the parents were unable to resolve the matter in any final way.

4. The parties came to the Court today with quite polarised positions.  The father, who is desperate to have a relationship with his children, offers his consent to an order that would effectively now seek to preserve his relationship with Y over the next four years by regular – whilst limited – time at a contact centre of two hours each alternate weekend.  X, the older sibling, who will turn 13, and who has some behavioural challenges arising from his diagnosis of Autism Spectrum Disorder (ASD) and Attention-Deficit Hyperactivity Disorder (ADHD) is given the opportunity by the parents to decide when and how he may spend time with his father.

5. The current indication from X most poignantly identified in the recent interviews by Dr C conducted on 21 September 2023 is that he seems, at this stage, to have an entrenched view that he does not wish to spend time with his father.  One would be reluctant to merely accept the view of a currently-12-year-old’s entrenched views unless there was a basis for it.  It is hard on all the evidence untested, as it is to be satisfied there is a proportional basis for his attitude.  I accept that there is an allegation that as long ago as five years in mid-2018, X is said to have been assaulted by his father.  Of course, any such conflict between a parent and a child can have a significant effect on their relationship.  How that is managed in the home in which the child primarily lives and how it is put into a perspective or context can all help children, if required to forgive, a parent for some inappropriate behaviour.  Parents make mistakes.  Children can be forgiving if they are given the opportunity to do so.  However, the history shows that many attempts, apart from forensic assessments of the family dynamic, which is problematic, and even family therapy as ordered by Judge Middleton in September 2022 has failed to move X’s current view of the value he sees in his father.

6. On the evidence before me, X would benefit from a relationship with his father.  The fact that he cannot see it at his level of maturity, or for whatever reason, does not make it true that there is no value from that relationship.

7. As I indicated to Mr North of Counsel, who appears on behalf of the father today, it takes much greater courage and bravery for the father to agree to orders like he has today, rather than – as so many litigants in this country do – take the matter to a trial; maybe get a result that they are less happy with; and then become one of the many people out there in society who blame the Court for its failure to do anything to remedy a family situation.  However, that the father has reached the position that he does, deserves recognition for putting the interests of X above his own.

8. In situations like this, of course, where there are two children, their journey and relationship with each parent may be slightly different.  Y is entitled to continue to explore a relationship with her father in a way that X does not wish to do.  The reason why I have sought to see a slight variation in one of the orders, is that I could foresee that an order compelling the parties to maintain what might be a two hour supervised visit – which Y, as she gets older, may not enjoy much – is likely to break in one of two ways:

   (a)she may just wish not to go anymore; or

   (b)she may wish to change the nature of her visitation with her father in a more meaningful way than can be given in a contact centre, even with the attractions of an offsite venue.

9. It is my hope that the parents, having been through nine years of litigation, really, since separation will be sensible enough to identify when Y reaches a stage of seeking a change, which I would hope, would be to spend more time with the father and enjoy it without having to come back to the Court; without having to engage in further litigation.  Only time will tell.  The Court is always reluctant to make orders for long-time supervision.  The authorities make that clear (see Moose & Moose (2008) FLC 93-375). There is a sunset clause here for four years. There is nothing magical about that. The parties have agreed to it and I am prepared to adopt it.

10. Earlier today, as the transcript will reveal, although unlikely ever to be seen by anybody, I made it clear that one of the things that I think these children need was some certainty and some clarity about their future living arrangements.  Even a child without a diagnosis such as X carries is reaching a stage of their development where parents are not the most important people in his life.  His peers, his school, his music, his friends, his sport may all be much more important to him.  He needs to be able to focus on those things that are important to him, knowing that he has the love of each of his parents, who will be there when, as is almost inevitable, at some stage of his future life, he seeks their guidance and support.

11. It is for that reason that I indicated I would make these orders, however, with a provision that provided X clear manifestation of a continuing love and interest in his life that the father, which I am sure, the father holds for his son.  Whether that has any effect, long-term, I will never know.  But I believe an order with that provision to provide gifts etc, for this case and this child, is appropriate.  Because the evidence has not been tested, it is not – in my view – appropriate to attempt to make any findings about some of the issues of risk that were identified by the father’s material directed to the mother, and the mother’s material directed to the father. 

12. It is always a great concern to the Court that when in this case, we have two parents who are reasonably well-functioning; not affected by abuse of alcohol, drugs or significant mental illness or where family violence is not a constant everyday feature of their relationship and/or relationship with others – that the parents relationship with their children is put at risk because, it seems to me, that the dynamics between the mother and the father is so conflicted.  That was certainly not what these parties intended when they commenced cohabitation as 25-year-olds in 2006, and why would it be?

13. Nonetheless I am satisfied on the submissions of Mr North of Counsel for the father, Mr Bunning of Counsel for the mother, and the Independent Children’s Lawyer represented by Ms Pendergast of Counsel, that on the evidence – although untested– all of which I have read, the orders which are offered with the Court’s two small amendments I have made, are in the best interests of the children.  I make them on a final basis.  I discharge the Independent Children’s Lawyer.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate: 

Dated:       19 December 2023