Field and Story
[2018] FamCA 1066
•14 December 2018
FAMILY COURT OF AUSTRALIA
| FIELD & STORY | [2018] FamCA 1066 |
| FAMILY LAW – CHILDREN – dispute as to residence – whether mother’s mental health creates an unacceptable risk – orders for child to live with father and spend substantial and significant time with the mother. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 Donnell & Dovey (2010) FLC 93-428 Mulvany & Lane (2009) FLC 93-404 Hort & Verran [2009] FamCAFC 214 Parsons & Anor & Masson (2018) FLC 93-846 Mulvany & Lane (2009) FLC 93-404 |
| APPLICANT: | Mr Field |
| RESPONDENT: | Ms Story |
| FILE NUMBER: | BRC | 7461 | of | 2015 |
| DATE DELIVERED: | 14 December 2018 |
| PLACE DELIVERED: | Lismore |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 11, 12 & 13 June 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms A McDiarmid |
| SOLICITOR FOR THE APPLICANT: | Delaney & Delaney |
| COUNSEL FOR THE RESPONDENT: | Mr R Clutterbuck |
| SOLICITOR FOR THE RESPONDENT: | Milburns Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mary-Ann Huth Legal Aid Queensland |
Orders
That all previous parenting orders be discharged from 19 December 2018.
That the parents have equal shared parental responsibility for decisions regarding the long term care, welfare and development of the child, X born …2013 (“the child”).
That each parent have responsibility for decisions regarding the day to day care of the child whilst the child is in their respective care.
That the child shall spend time and communicate with each of the parents as may be agreed between the parents, but failing agreement:
(a) until the child commences his preparatory school year in 2019:
(i)with the mother for a week commencing 19 December 2018 (subject to Order 5(e) relating to Christmas arrangements);
(ii)with the mother from 3.00pm Thursday, 3 January 2019 to 4.00pm Sunday, 6 January 2019;
(iii)with the mother for a week commencing 13 January 2019; and
(iv)at all other times with the father.
(b) Once the child commences school in January 2019:
(i)during school terms in a two (2) week cycle with the mother from after school Wednesday to before school Friday in the first week, and from after school Thursday to before school Monday in the second week, and with the father the balance of the time;
(ii)For the school holidays (other than the Christmas school holidays in 2019/2020), with the mother for the first half in even numbered years, and the second half in odd numbered years, and with the father for the first half in odd numbered years and the second half in even numbered years; and
(iii)For the end of term four (4) Christmas school holidays in 2019/2020, with the father for the period concluding on 26 December 2019; then with the mother for two weeks commencing 26 December 2019 with the balance of the time from 9 January 2020 to be shared equally but on the basis that the child return to the father on the Friday preceding the beginning of the school year.
That the arrangements for time be suspended for special days and the child shall spend time with the parents for special occasions as follows and from the commencement of this Order:
(a)On the child’s birthday, with the parent who does not have his care on that day from after school/daycare to 6.00pm if it is a school day or from 12 noon until 5.00pm if it is a non-school day;
(b)On Mother’s Day with the mother from 9.00am to 5.00pm on that day;
(c)On Father’s Day with the father from 9.00am to 5.00pm on that day;
(d)If the child is not with his father or mother on their birthday, from after school to 6.00pm if it is a school day, or from 9.00am to 5.00pm if it is a non-school day; and
(e)For Christmas:
(i)with the mother from 9.00am Christmas Eve until 9.00am Christmas Day in odd numbered years and from 9.00am Christmas Day to 9.00am Boxing day in even numbered years; and
(ii)with the father from 9.00am Christmas Eve until 9.00am Christmas Day in even numbered years and from 9.00am Christmas Day to 9.00am Boxing day in odd numbered years.
That the parents facilitate the child telephoning or video calling the parent with whom he is not living with at all reasonable times he may request, with the parents to ensure that the calls occur at least every two (2) days.
That for the purpose of changeovers which do not take place at school or daycare, changeovers shall occur at McDonalds B Town.
That the parents shall keep each other informed of their residential address, email address, mobile and landline telephone numbers and any changes to those details within forty eight (48) hours of such change.
That the parents shall keep each other informed of any emergency regarding the child as soon as reasonably practicable.
That this Order authorises the parents to obtain (at their own expense) any information or documentation about the child from his school, medical and other health practitioners, or extra-curricular activity providers that would normally be available to parents.
That the parents shall ensure that they do not:
(a)denigrate the other parent or members of that parent’s family in the presence or hearing of the child, or allow him to be present or within hearing if others are doing so;
(b)discuss these proceedings or the issues raised in these proceedings with the child, or allow him to be present if others are doing so; and
(c)communicate information or messages to the other parent through the child.
That the parents each be at liberty to attend the child’s daycare, school or extra-curricular activities for the purposes of activities which would normally be attended by parents.
Medical reports and attendance upon practitioners
That the mother shall engage with her psychiatrist, Dr C, or any psychiatrist who replaces Dr C as her treating psychiatrist (“the treating psychiatrist”) and undertake such treatment as is recommended and attend appointments with such frequency as is recommended by the treating psychiatrist provided that if the treating psychiatrist recommends that the management of the mother’s condition be undertaken by a psychologist, then the mother shall attend such appointments, as recommended.
That the mother shall irrevocably authorise and direct her treating psychiatrist or psychologist to provide the father on a six (6) monthly basis a report as to the mother’s treatment and level of functioning and keep the father informed of any change in her treating psychiatrist and/or psychologist.
That the mother shall attend upon her general medical practitioner every two (2) months for mental health review and provide to the father evidence of such attendance.
That the Independent Children’s Lawyer be discharged.
THE COURT ORDERS BY CONSENT:
Embryos
That the mother forthwith do all acts and things and sign all documents necessary to transfer to the father any right or interest she may have in the frozen embryos held in storage with the D Group and to notify the said fertility centre that with effect from the date of these Orders the father shall be the sole owner of the said embryos.
That with effect from the date of these Orders, the father is to be solely responsible for all costs associated with the embryos, including but not limited to costs associated with their storage, transportation, renewal, use or disposal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Story has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT LISMORE |
FILE NUMBER: BRC 7461 of 2015
| Mr Field |
Applicant
And
| Ms Story |
Respondent
REASONS FOR JUDGMENT
Introduction
The child X, now aged five years, is the only child of the relationship between the Applicant, Mr Field (“the father”) and the Respondent, Ms Story (“the mother”), who cohabited for nearly five years before separating on 21 July 2014.
Although the process of the child’ conception and birth are unusual, as the family report writer Ms E stated “this is simply a dispute about parenting arrangements for a young child”. I agree and also note, that by final oral submissions, issues arising from the mother’s diagnosis of a mental health condition had been clarified through the cross examination of witnesses.
The dispute, as I soon articulate in these Reasons, ultimately became whether the child should live primarily with the father or whether an equal time regime would be in his best interests. The reasons that follow seek to explain how the Court has reached its conclusion.
Competing proposals
Father
By the time of final oral submissions delivered by his Counsel Ms McDiarmid, the father’s position had altered from that set out in the case outline filed 4 June 2018). Annexed to these Reasons and marked Appendix One is the minute of order contended for by the Applicant father (tendered as Exhibit 11). Significantly, after the evidence was complete:
a)the father also now seeks an order for equal shared parental responsibility;
b)the father no longer seeks orders for overnight time to be “in the presence” of the maternal grandparents;
c)the proposed orders graduate time from 3.00pm Wednesday to 5.00pm Friday to a permanent regime from the start of the 2019 school year, of five nights a fortnight during school terms and half of school holidays; and
d)The father no longer seeks highly prescriptive orders relating to ongoing psychiatric treatment (see proposed order 17 in the case outline), but a more general authority for six monthly reports.
Mother
Mr Clutterbuck, the mother’s Counsel, did not depart from the position the mother articulated in her case outline filed 4 June 2018, annexed and marked Appendix Two, which proposes an equal time regime broken up into two separate blocks of time each 14 days, being:
a)9.00 am Thursday to 9.00 am Sunday; and then
b)9.00 am Wednesday to 9.00 am Sunday,
school holidays are to be shared equally with provision for special occasions such as Christmas, the child’s and parent’s birthday and Mother’s and Father’s Day.
Independent Children’s Lawyer (“ICL”)
Ms Oakley for the ICL, tendered in final submissions Exhibit 10 (and annexed to these Reasons as Appendix Three), a proposal where the child shall live primarily with the father and, once he commences school in 2019, he shall spend essentially six nights a fortnight with the mother as follows:
a)After school Wednesday to before school Friday in the first week; and
b)After school Thursday to before school Monday in the second week.
with an equal sharing of school holidays and special days. At paragraph 13 of the proposed orders, the ICL seeks, but in a different form, a report from the mother’s Psychiatrist (or Psychologist) “no more frequently than once every three months”, to be provided to the father.
As sometimes occurs, once all the evidence has been tested, the risks said to arise from the mother’s mental health condition, and which have shaped the interim orders to date, have diminished. As I note, the Court still regards the mother as having a vulnerability in respect of her mental health, however all parties now contend for at least an order that the child spend substantial and significant time with both parents, without any conditions of supervision.
The Court regrets the delay in delivering these Reasons, which has made some of the proposals for graduating time superfluous. It is a common position that the child will commence preparatory school at F School, from the commencement of the 2019 school year.
Contextual history
Statements of fact hereafter should be construed as findings of fact.
The father was born a girl in 1976 and commenced gender transition in 2002 and was confirmed as a “male” on his birth certificate in 2006. He is 42 years of age and a health professional by occupation.
The mother works in the hospitality industry, currently working in her parents’ business, and is 43 years of age.
The parents met in July 2009 whilst both were inpatients at G Clinic (a mental health facility) (“the Clinic”) where they were both receiving treatment – the father with support for his transition (and after he had been assaulted) and the mother referred by her general practitioner as she was “acutely depressed and actually suicidal”. Whilst an inpatient, Dr C (referred to hereafter as “Dr C”), diagnosed the mother with Bipolar Affective Disorder.
The parties commenced cohabitation almost immediately after the mother was released from the Clinic in early August 2009, marrying in 2009. It is fair to observe, that after such a short relationship, neither party knew a lot about the other party – save that they both wanted to have a family immediately.
The mother knew, of course, that she was marrying a transgender male, but it was not until three cycles of IVF where embryos were implanted from the father, he having suspended the hormone treatment he was undertaking, that it became clear that the mother’s womb would not carry a fertilised embryo. It is reasonable to find that, whilst this couple supported each other through this difficult and expensive process, it was likely to have been very stressful. By late 2012, the mother’s general practitioner Dr H offered the mother a mental health plan as he felt she would benefit from seeing a Psychologist to assist with her stress of not falling pregnant.
In late 2012, the father decided upon completion of his studies, he would submit to the fourth IVF cycle, and he fell pregnant in early 2013 quite quickly, with an embryo created from the father’s egg and donor sperm. Further embryos were set aside and frozen, with the access to those embryos being an issue that caused, I am satisfied, some conflict between the parties. By the commencement of the hearing before me, those issues had been resolved and a consent order will be made whereby the mother transfer “any right or interest” she may have in the frozen embryos to the father.
Although the birth of the child in 2013 was a very happy event, I accept the evidence that Dr J (the fertility clinic physician) wrote to Dr C in May 2013 stating the IVF had been emotionally difficult for the mother and that she had gained weight, not because of the IVF treatment, “but possibly” linked to her disappointment in not falling pregnant.
As a result of the weight gain, the mother underwent weight loss surgery in August 2014 – shortly after the parties separated on 21 July 2014 (but remained living under the one roof for a short time). The child was then nine months old.
The mother, even at the hearing some four years later, persists with an allegation that the father had engaged in an extra-marital affair before separation, which the father denies – although he did commence cohabitation with a lady Ms K in August 2014. Upon separation finally, the parties maintained a shared care arrangement for the baby – with the baby effectively spending alternate nights in each parent’s care. The parties, to their credit attended post separation parenting courses and mediation, but the shared care arrangement was proving difficult – with the baby by April 2015 not sleeping well.
The father asserts from around May/June 2015 he became concerned about the mother’s behaviour, including on his evidence, the mother becoming aggressive and erratic. The father says the cooperative parenting relationship was breaking down. He claims the mother made abusive comments about transgender issues, which the mother denies. After a dispute between the parties on 14 July 2015 about the mother taking the child to L Town for a friend’s wedding, which the father opposed, the father unilaterally decided to withhold the child from the mother and retain full-time care of the child. This, quite naturally, distressed the mother and fortunately the father launched legal proceedings quickly, filing in the Federal Circuit Court of Australia on 4 August 2015 returnable before Judge Coates, sitting in B Town, on 7 September 2015 when his Honour made interim orders that the child live with the father and spend time with the mother, supervised at M Group. Judge Coates transferred the matter to the Family Court of Australia.
At the time of the interim hearing, the Court had a brief report from the mother’s Psychiatrist Dr C, referred to later in these Reasons.
Consistent with the father’s concerns and allegations about the mother being volatile and abusive, much was made at the hearing about an incident between the mother and process server, Mr N. Frankly, after the cross examination of Mr N and his wife, who was in the car at the time, I am not satisfied that the mother was avoiding service. Certainly Mr N chased her and the mother says, and I accept, she did not know who the person was and became concerned when they entered a quiet street. I am prepared to accept that Mr N, a professional process server, was not overly aggressive as the mother portrays. I found the incident overall of little assistance in assessing the mother’s capacity to parent now.
Experienced report writer Ms E was engaged to prepare a family report, with interviews taking place on 11 March 2016. Ms E was not required for cross examination on her considered report dated 28 March 2016. Although the father’s partner at the time Ms K was interviewed by Ms E, the father and Ms K separated a few months later and no evidence was offered to the Court from this lady.
On 14 September 2016, Consultant Psychiatrist Dr O, interviewed the mother and his report dated 2 November 2016 contained a number of opinions from his cross-sectional assessment, about which he was tested in brief cross examination.
In further interim orders made by Senior Registrar Spink in October 2016 and February 2017, the child’s time with the mother moved from limited day time at M Group to ultimately 3.00pm Wednesday to 5.00pm Friday each week, with “overnight time to occur in the presence of” the maternal grandparents, Mr P and/or Ms Q Story. These interim orders have remained in existence to the hearing and, I assume, are still operating.
Although the father identified other incidents in his Affidavit which he asserts confirm the mother’s conflictual nature (for example an incident when the father was concerned about a severe weather warning; some disclosures by the child of his awareness of the parental conflict and disputes over immunisations etc), I have formed the view that these events characterise the deteriorating communication between the parents in an environment where:
a)the mother felt she was being unfairly denied more time with her child because of spurious claims about her mental health; and
b)the father indicating a desire to return to live in Tasmania (where his parent also live), which was a position he maintained until October 2017; and
c)the constant dispute about the access to the remaining frozen embryos.
These parental tensions were, I am satisfied, becoming more apparent to the child, and were likely to have caused him some anxiety. I am satisfied, that in different ways, both parties’ personalities contributed to these conflicts – although, at another level, both sincerely understood the need to protect the child from the conflict. Clearly each parent has a capacity, in my view, to push the other parent’s “buttons”.
The matter proceeded to a hearing before me over three days commencing 11 June 2018. There was an unfortunate incident during the trial involving the maternal grandfather, Mr Story. Mr Story was not an intended witness in his daughter’s case, and as such he sat in Court during the father’s cross examination. He says he became agitated by that testimony and after Court on one day, he foolishly removed a key from the paternal grandmother’s motorised scooter – immobilising it. The paternal grandmother has an amputated leg. The actions of the grandfather were witnessed, and I required him to give evidence, about his initial denials and then confession. He was, on my assessment, suitably embarrassed and contrite. I am prepared to accept it was out of character for this man who strongly supports his daughter. It reflected however, how the emotions of this litigation flowed on to extended family.
Statutory principles
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 (“the Act”) 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 child.
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.
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.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
In this case, as the exchanges between the Bench and Counsel in final submissions reflect, the mother is not strictly a “parent” as defined by the Act, in that she has provided no genetic material for the child’s conception (despite efforts to do so). In these Reasons I have described her as the “mother” because that is the role she has played and that is how the child sees her in his life. The father also accepts that is the position. I make this observation, lest it be thought I am unaware of decisions such as Donnell & Dovey (2010) FLC 93-428 where the Full Court at [92] said:
92. The only attempt made in the legislation to assist in interpreting the meaning of the word “parent” is contained in s 4(1), which says that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”. We therefore proceed on the basis that “parent” means a biological or adoptive parent and does not include a person who stands in loco parentis to a child: Mulvany & Lane (2009) FLC 93-404 per May and Thackray JJ at [32]. See also Hort & Verran [2009] FamCAFC 214, per Coleman, O’Ryan and Strickland JJ at [84]…
and more recently in Parsons & Anor & Masson (2018) FLC 93-846, where at [86] to [90] the Court concluded that:
90. It will be apparent that in every case it is necessary to determine, as a preliminary question, which of the parties answers the description “parent”. It will also be seen that this is a matter upon which the court’s power is conditioned, given the terms of both 61DA (which applies in every case) and s 65DAA (which applies whenever an order for equal shared parental responsibility is to be made).
I further note that notwithstanding the concerns expressed by Finn J in Mulvany & Lane (2009) FLC 93-404 at [15], the Act does not provide any guidance as to the weight to be attached to a child’s relationship with a person who is found not to be a child’s “parent”.
I make these observations on the law, to make it clear that I am conscious that the mother is not a “parent” as defined by the Act, but as in Mulvany & Lane (supra), when I come to consider the relevant s.60CC(2) and (3) matters, I at times treat the mother as “a parent”. For completeness, no issue was raised before me, as a jurisdictional issue, that the mother had not sought leave to engage in this litigation, as higher authority dictates.
Family report
Before discussing the competing proposals within the matrix of the relevant s.60CC(2) and (3) considerations, it is helpful for context to incorporate in these Reasons, some of the opinions formed by the report writer. I give some weight to these opinions, noting that they were not challenged by cross examination. That, of course, does not mean that I am bound to accept them but generally the foundation for the views expressed by the report writer are consistent with the whole of the evidence I received during the trial. In particular:
a)at paragraph 29, the report writer observed both parents were “articulate, pleasant and co-operative with the preparation of the report, as were their parents and [Mr Field’s] partner.”;
b)the father reported, as his evidence asserted, to Ms E, that in 2015 Ms Story “became more verbally abusive towards him and more assertive about ‘her role as the mother’. He said that he became concerned that she was not taking her medication”;
c)at the time of the interviews (in March 2016), the father envisaged time would remain supervised, even though he had not opposed the mother and the child having a family holiday over 10 days in February 2015. He says he felt comfortable with the trip because the mother’s parents were going and that they were “a stabilising influence and responsible adults” (paragraph 43);
d)at paragraph 57, Ms E recorded the mother as identifying:
…that the critical incident is that she and [Mr Field] got into a dispute about their frozen embryos, which belong to both of them. She said that she would not agree to sign over the embryos so that [Mr Field] could have another child when they created these embryos together as husband and wife. She said that they have embryos, eggs and semen in storage. She said that as well as this being a shared venture as a family, she was also concerned about the possible effect on the child of his father becoming pregnant again. She said that if she had simply signed over the embryos to [Mr Field] as he wanted, there would still be a 50/50 parenting arrangement in place. She said that because she disagreed with him, [Mr Field] behaved in a punitive manner. She said that they are still in dispute about the future of the embryos and other genetic material and a Judge will have to make the decision.”
e)Thankfully, as earlier noted, the mother’s position altered by the time of the trial;
f)Ms E set out her observations of the child with both parents (at paragraphs 73 and 77) before concluding at paragraph 78 as follows:
It was easy and relaxing spending time with the child and his mother and her parents, and then with his father and his partner and the time went quickly during both sessions. This is definitely not always the situation when conducting observations for family reports. [The child] was happy and comfortable with everyone and all of the adults were attentive and appropriate. So far, [the child] appears unaware of and untroubled by this dispute between his parents. There was an awkward moment when the parties passed each other in the corridor and [Ms Story] bent down to hug [the child], but everyone kept moving and there was no altercation.
g)Ms E observed that whilst the child presented as “a happy and untroubled child” this is unlikely to continue “while there are high levels of conflict between the parents and they remain unable to communicate and cooperate about their child” (paragraph 84);
h)Ms E recommended a restoration of the “shared parenting arrangement” if the mother does not have a mental health problem that could affect her capacity to care for the child. She also opined that holidays be shared by the child’s prep year (2019).
I give some weight to these opinions, however, after the report interviews in March 2016 (some two years before the hearing commenced), there were further examples of the parents’ poor communication and the effect it was beginning to have upon the child. This raises, in my view, concerns about whether an equal time regime suggested by Ms E is workable.
Before dealing with the primary and additional considerations, it is appropriate in this case, to make some findings about the mother’s mental health challenges.
Mother’s mental health issues
There is no dispute that the mother was diagnosed by Dr C in 2009 with Bipolar Affective Disorder Type 2. The material available to the Court (and the father and, I assume, his family) about the mother’s condition has included:
a)the reports dated 6 August 2015, 20 February 2017 and 23 March 2018 (collectively marked Exhibit 2) from Dr C;
b)the report of Dr O; and
c)the further evidence under cross examination, of both Dr C and Dr O.
In my view, the father as a health professional and with the input of his father (a retired general practitioner) was capable of “over analysing” the data to try and provide some basis for his concerns that arose from observing what he described as the irritable and erratic behaviour of the mother – particularly around mid-2015. It is, I assess, his lack of trust and confidence in the mother, that caused him to not be satisfied with the initial report of Dr C of 6 August 2015.
I do accept that the absence of a clinical relationship with Dr C between December 2009 and May 2013 and then again between January 2014 and July 2015, exacerbated his concerns. He felt the mother’s use of prescribed medication was non-complaint. The mother, for her part at times since separation, appears without medical advice, to have decided to stop the use of Seroquel because the father, she felt, was using it against her and it made her sleepy. These competing perspectives were difficult to unravel during the interim hearing phases of these proceedings.
Ultimately, looking forward from the evidence produced at the hearing, the issue is not whether the mother has a mental health condition. She clearly does. The issue is her insight into her condition; the management of that condition (with both medication and therapy) and importantly, the effect this may have on her capacity to parent the child.
In the end analysis, both the father and the ICL propose that the mother spend unsupervised time with the child, and this is based, properly in my view, upon an acceptance that currently the mother’s capacity is not diminished by her mental health.
Whilst I also accept this is the current position, should the mother fail to maintain a therapeutic relationship with at least her general practitioner, as well as Psychiatrist or Psychologist, which will involve monitoring her mix of medication (including for her knee pain), then she is vulnerable to relapse. The reporting conditions which will be imposed by Court order hopefully, over time, will allay some of the father’s concerns.
Primary considerations
By definition, s.60CC(2)(a) only relates to the father. I find it is of benefit to the child that he have a meaningful relationship with the father. As I explore later in these Reasons, I regard it as also critically important, and a benefit accrues to the child, in having a meaningful relationship with the mother.
The orders I make in the child’ best interests “need to protect the child from physical or psychological harm from being subject to or exposed to, abuse, neglect or family violence”. On the evidence, the most likely risks facing the child (adopting the earlier findings about the mother’s mental health), is of psychological harm arising from:
a)The ongoing parental conflict; and
b)the way in which the family, the parties and ultimately the peers and community where the child lives and plays, adjust to the increasing awareness that the child’ conception and birth have some unusual features.
As to the parental conflict, it is my assessment that both the mother and father, once this litigation is finished, are capable of focusing on the best interests of the child. They are articulate and caring parents – who are both capable, in moments of emotional stress, to make a thoughtless even hurtful comment about the other parent. At the time of the hearing, communication was still poor, however I find these parents have the capacity to improve their communication.
In respect of the second issue, I do not accept that the father has any identity issues with his transgender status. He regards himself as a man and that is how the child sees him. He has formed relationships with other people of both sexes, and functions well in a difficult workplace. Even before the evidence of Dr R, the father, I find, is well aware of the types of issues the child will likely face.
Sadly, children can at times be cruel and make hurtful comments, as can their parents. However, with open, honest and consistent explanation and education (at age appropriate levels), there is no reason to doubt the theoretical evidence of Dr R (who never met the father or the child before giving his report and evidence) that the child will continue to develop and retain his pleasant disposition. Both the mother and father, who are the child’ major role models and influencers, are, I accept, committed to assisting their child. He may need to develop more resilience than some children, but provided the parents work together and do not seek to confuse the child about “who he is”, the prospects for the child are promising. Already he shows signs of being a talented little boy and the school selected by the parents will offer him a rounded and supportive education.
The key lies in the way the parents interact and deal with the issues ahead.
Additional considerations
I will deal with these issues, in a narrative style.
The child was only two and a half years old at the time of observations by Ms E, so any feelings or wishes were not formally collected. The warm interactions observed by Ms E, I take, as an indication of his desire and comfort in spending time with both his mother and father.
In view of the history of care since separation, it is likely that the child is now primarily attached to his father, but little turns on that finding. The child’ time with the mother has been less and, initially, restricted by the supervision ordered. However, I have no hesitation in finding that the child is strongly bonded to both his mother and his father. The extended family of the father, who spend significant time with the father in Queensland (from their home in Tasmania) are a strong support to the father. He lives in a home owned by them. They have, I accept, an important relationship with the child which he enjoys. The child also has cousins he sees about monthly in Brisbane, as well as some interstate.
The mother’s extended family is no less supportive or loving towards the child. The nature of the arrangements ordered required overnights to be spent at the home of the maternal grandparents. The child has, I find, a close and loving relationship with them. The mother works in a business owned by the grandparents, which allows some flexibility of availability to care for the child.
As much as orders have permitted, both the father and the mother have fulfilled their parental duties and there are now no practical geographical difficulties in any of the time arrangements proposed by the parties as they live and work in the same regional community in reasonable proximity to the child’s intended school.
I will deal with the “likely effect of any changes” (s.60CC(3)(d)) when explaining the Court’s decision below.
Subject to findings already made about the mother’s vulnerability arising from her diagnosis and management of her Bipolar condition, each party has the capacity to meet the physical and emotional needs of the child and this is consistent with the opinion expressed by Ms E.
The parents are very different people, who are likely to parent differently. They have had little opportunity to observe the other parent in an everyday situation - considering how old the child was when they separated. However, I did not detect any significant differences in their core values – working hard; treating people with respect; valuing education and family values. Faith issues do not arise, and I note that the child will attend a private school, by agreement.
No family violence issues really arise, and no family violence orders have been made.
I believe that the orders I make are least likely to lead to further proceedings – although I accept that the mother will be disappointed that an equal time arrangement has not been ordered. She strongly believes she is an “equal parent” and that the child “deserves” an equal shared parenting arrangement. Furthermore, if the mother does not maintain good mental health (a risk that cannot be totally ignored as a possibility in the future, but not as high as a probability), then this hyper alert father may well instigate further proceedings.
Parental responsibility
In the final submissions, all parties invited the Court to make an order that the mother and father have equal shared parental responsibility. As previously identified, the presumption is not applied, as there is only one “parent” by definition.
The number of major long term issues which the child is required to confront, being a healthy and well-adjusted child at the moment, are not numerous. In this case, even though work on parental communication is critically important, the current stressors do not amount to a reason not to accept the parties’ position. Accordingly, I will make an order for equal shared parental responsibility. I give credit to the father in altering his position after all the evidence was before the Court.
Time arrangements
In my view, the father has created a stable and functioning household for the child which has met his needs – in fact the child seems to have flourished - since mid-2015. I believe the child will benefit from having a continuing “base” with the father having majority care and having substantial and significant time with his mother. I believe this is in his best interests and reasonably practicable.
In coming to this conclusion, I have formed the view that an equal time arrangement is not in the child’ best interests at this time, considering his age, and the still difficult communication dynamic. In time, as the child gets older, it may be possible to move to two blocks of time (so as to reduce the number of changeovers a fortnight), but I am not sufficiently certain when that could practically occur.
There is ultimately little difference between the proposals (mathematically), however I am persuaded that the proposal of the ICL with some adjustment and graduation, presents as the best option.
It includes two periods of one week with the mother during the 2018/2019 school holidays – slightly adjusted to allow the mother to spend Christmas Day with the child this year. By separating the 14 days during school terms into two blocks of time, the child does not have a lengthy period when he does not see either his mother or father. For the 2019 Christmas school holidays, I propose that the father have two weeks, concluding on Boxing Day 2019, when the mother shall then spend two weeks with the child.
The balance of the 2019/2020 Christmas school holiday will be shared equally. I accept the parties may need to make some slight adjustments, as the private school the child will attend might have slightly more than the regular six weeks end of year holidays.
The orders at the beginning of these Reasons, which I regard as in the child’ best interests, make provision for special occasions and reporting by the mother’s treating health professionals.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 14 December 2018.
Associate:
Date:
APPENDIX ONE
That all previous parting orders be discharged.
Parental responsibility
That the Mother and the Father shall have equal shared parental responsibility with respect to all “major long term issues” (as that expression is defined in the Act (as amended)) for the child, X (“the child”), born … 2013.
That the Mother have the day to day responsibility for the child while he is in her care.
That the Father have the day to day responsibility for the child while he is in his care.
Living arrangements
That the child live with the Mother as follows:
5.1Until 1 August 2018:
i.From 3:00pm Wednesday to 5:00pm Friday;
5.2Until 3 October 2018:
i.In Week 1 of a two week cycle, each alternate week, from after Kindergarten, Wednesday, until before Kindergarten, Thursday;
ii.In Week 2 of a two week cycle, from 3.00pm Wednesday until 5.00pm Saturday;
Until the child commences preparatory year at school in 2019:
i.In Week 1 of a two week cycle, each alternate week, from after Kindergarten, Thursday, until before Kindergarten, Friday;
ii.In Week 2 of a two week cycle, from 3.00pm Thursday until 5.00pm Sunday;
After the child commences preparatory year at school in 2019:
5.4During the school term:
i.In Week 1 of a two week cycle, from after school Thursday afternoon until before school Friday morning;
ii.In Week 2 of a two week cycle, each alternate week, from after school Thursday until before school Monday;
During the school holidays
i.Until the child commences Year 5, for half the school holidays, for the first half in odd numbered years and the second half in even numbered years and in the Christmas holidays in alternate weeks;
ii.After the child commences Year 5, for half the school holidays, for the first half in odd numbered years and the second half in even numbered years;
iii.In the event that the Mother intends to travel with the Child away from her place of residence for a period longer than two (2) nights, the Mother provide to the Father notice of itinerary at least 28 days prior to travel;
iv.With changeover during the school holidays to occur at 3:00pm.
That the child live with the Father at all other times except for special occasions detailed in the Orders.
Communication
That the child communicate with either parent by telephone or video chat at all reasonable times, with the child to initiate the call except for one occasion during each period the child is with the other parent.
Special Occasions
That on the child’s birthday, the child shall spend time with the parent who does not have his care on that day, with such time to be as agreed between the parties in writing at least seven (7) days prior, or failing agreement, from after school until 6.00pm if the birthday falls on a school day or from 12.00pm to 5.00pm if the child’s birthday falls on a non-school day.
In the event that the Mother’s birthday falls on a day when the child is not in the Mother’s care, the child shall spend time with the Mother on that day with such time to be agreed between the parties in writing at least seven (7) days prior, or failing agreement, from after school until 8.00pm if the birthday falls on a school day or from 12.00pm to 6.00pm if the Mother’s birthday falls on a non-school day.
In the event that the Father’s birthday falls on a day when the child is not in the Father’s care, the child shall spend time with the Father on that day with such time to be agreed between the parties in writing at least seven (7) days prior, or failing agreement, from after school until 8.00pm if the birthday falls on a school day or from 12.00pm to 6.00pm if the Father' s birthday falls on a non-school day.
In the event that Mother’s Day falls on a weekend when the child is not in the Mother’s care, the child shall spend time with the Mother on that day from 9.00am to 5.00pm.
In the event that Father’s Day falls on a weekend when the child is not in the Father's care, the child shall spend time with the Father on that day from 9.00am to 5.00pm.
For Easter, in the event that the Easter long weekend is not adjacent to the gazetted school holiday period, then the Child shall spend half the Easter long weekend with each parent, for the first half with the Mother in odd numbered years and the second half in even numbered years.
For Christmas, as follows:
a.In even-numbered years, the child spend time with the Mother from 9:00am on Christmas Eve until 9.00am on Christmas Day, and with the Father from 9:00am Christmas Day until 9:00am Boxing Day;
b.In odd-numbered years, the child spend time with the Father from 9:00am on Christmas Eve until 9.00am on Christmas Day, and with the Mother from 9:00am Christmas Day until 9:00am Boxing Day.
That the parties be a liberty to attend the child’s extra-curricular activity events, and school events to which parents are normally invited.
Changeover
That any changeovers which cannot occur at school shall occur at McDonalds, B Town.
Medical Reports and attendance upon practitioners
That the mother shall engage with her psychiatrist, Dr C, or any psychiatrist who replaces Dr C as her treating psychiatrist (‘the treating psychiatrist”) and undertake such treatment as is recommended and attend appointments with such frequency as is recommended by the treating psychiatrist.
That the Mother shall irrevocably authorise and direct her treating psychiatrist, to provide the Father on a six monthly basis a report as to the mother’s treatment and level of functioning.
That the Mother shall attend upon her General Medical Practitioner every two months for mental health review and provide to the father evidence of such attendance.
The Mother’s Residence
That in the event that the Mother intends to change her living arrangements such that she is not living in her parent's residence, she provide the Father with two (2) months’ notice and, in these circumstances, the Father be at liberty to apply.
Ongoing Mediation and Parenting Support
That the parties attend mediation at S Centre or with Dr T, or counsellor Dr T recommends, from time to time, as agreed between the parties, but not less than once in every twelve (12) month period, to confer and negotiate in relation to ongoing parenting issues.
That the parties attend an appointment with Dr T, or counsellor Dr T recommends, within sixty (60) days of the date of these Orders and the parties seek and follow guidance from her as to disclosure to the child of sensitive information.
Authorisation
That this Order hereby authorises:
a.The child’s school to provide each parent with copies of all school reports and other reports on school progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which parents are invited and school photograph order forms; and
b.The child’s general medical practitioner or any other professional associated with the health, welfare, care and development of the child to communicate with each parent and provide them with all such information and documents they may request form time to time regarding each child's medical health and general welfare, including any diagnosis, proposed treatment or prognosis for each child.
Refraining from Denigration
That each parent shall refrain from:
a.Denigrating or criticising the other parent or members of the other’s family or any significant others to the child, within the presence or hearing of the child and shall use their best endeavours to ensure that no one else does so either;
b.Exposing the child to conflict between the parties and involving the child m disputation and, in particular, discussion regarding adult issues and parenting issues in the presence of the child at changeover;
c.Passing information or messages through the child to the other parent;
d.Questioning the child about the other parent and his/her household;
e.Discussing with the child these proceedings (save and except for the effect of these Orders in so far as the Orders affect the child); and
f.Showing the child any document connected with these proceedings.
That the Mother refrain from telling the child that the Father feels ambivalent about his gender identity or saying any words to that effect.
IT IS ORDERED BY CONSENT ON A FINAL BASIS:
Frozen Embryo
The Mother forthwith do all acts and things and sign all documents necessary to transfer to the Father any right or interest she may have in the frozen embryos held in storage with the D Group and to notify the said fertility centre that with effect from the date of these Orders the Father shall be the sole owner of the said embryos.
With effect from the date of these orders, the Father is to be solely responsible for all costs associated with the embryos including but not limited to costs associated with their storage, transportation, renewal, use or disposal.
APPENDIX TWO
That the applicant and respondent have equal shared parental responsibility for the care, welfare and development of the child of the relationship namely, X born … 2013 (the child).
Each parent will be responsible for the day to day decisions concerning the care of the child when the child is living with them or spending time with them.
That the child lives with, spends time and communicates with the applicant and the respondent a follows:
aIn a first 7 days cycle, with the applicant from 9.00am Sunday until 9.00am Thursday and with the respondent from 9.00am Thursday to 9.00am Sunday.
b.In a second 7 day cycle, and alternating with the first 7 day cycle thereafter, with the applicant from 9.00am Sunday until 9.00am Wednesday and with the respondent from 9:00am Wednesday until 9:00am Sunday.
c.For one half of each gazetted term school holiday period as agreed, and in default of agreement, with the applicant for the first half in odd years and the second half in even years and with the respondent for the first half in even years and the second half in odd years.
d.For the Christmas school holiday period as agreed and in default of agreement, with the applicant and the respondent each in alternating weekly blocks, save for the Christmas arrangements as set out herein with the applicant to have the first weekly block in odd years and the respondent in even years and alternating thereafter.
eOn the child’s birthday for a minimum of two hours if the birthday falls on a weekday and a minimum of four hours if the birthday falls on a non-week day with the party the child is not then spending time with pursuant to these orders.
f.For Christmas Eve, Christmas Day and Boxing Day the child’s time with either party pursuant to Orders 3a. 3b. and 3d. shall be suspended temporarily and the following orders shall apply so that the child spends time with each party as follows:
(i)In even years, from 5:00 p.m. on Christmas Eve until 12:00 noon Christmas day with the applicant and from 12:00 noon Christmas day until 5:00 p.m. Boxing Day with the respondent.
(ii)In odd years, from 5:00 p.m. on Christmas Eve until 12:00 noon Christmas day with the respondent and from 12:00 noon Christmas day until 5:00 p.m. Boxing Day with the applicant.
g.Such further and other times as may be agreed between the parties.
That the applicant’s time with the child be suspended:
a.If Mother’s Day falls on a weekend when the child is not already spending time with the respondent, from 5:00 p.m. on the Saturday before Mother’s Day until 5:00 p.m. Mother’s Day so the child can spend this time with the respondent;
b.On each of the child’s and the respondent’s birthday, if the child is not already spending time with the respondent, for a minimum of two hours if the birthday falls on a weekday and a minimum of four hours if the birthday falls on a non-week day
That the respondent’s time with the child be suspended:
a.If Father’s Day falls on a weekend when the child is not already spending time with the applicant, from 5:00 p.m. on the Saturday before Father’s Day until 5:00 p.m. Father’s Day so the child can spend this time with the applicant;
b.On each of the child’s and the applicant’s birthday, if the child is not already spending time with the applicant, for a minimum of two hours if the birthday falls on a weekday and a minimum of four hours if the birthday falls on a non-week day.
In the event either party is unable to care for the child during their respective periods pursuant to these orders, then the other parent is to be given first option to care for the child.
That when changeover is not able to take place at the commencement or conclusion of school, that changeover occur at the M Group Contact Centre, B Town.
That each parent encourage and facilitate telephone communication between the child and the other parent whilst the child is in their care or as requested by the child but no less frequently than once every 2 days.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
That in the event of childhood illness or emergency the parent with whom the child is spending time, contact the other parent as soon as reasonably practicable to inform them.
That each of the parties, refrain from:
a.Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or allow the child to remain in the company of any third party who is doing so and
b.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child, or any of them, and from permitting the child to remain in the company of any other person doing so.
That both parents be permitted to liaise directly with the child’s, day care, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress, as applicable.
That each party is at liberty to attend at the said child’s day care or school for the purposes of any function or activity normally attended by parents.
That the parties not consume alcohol to excess, take any non-prescribed codeine based medication or any illicit substances in the presence of the child or be in any way effected by them whilst the child is in that person’s care or control and not allow any third party to consume alcohol, take non-prescribed codeine based medication or any illicit substances in the presence of the child or be in any way effected by them whilst the child is in that person's care and further that the parties not smoke cigarettes, including E-Cigarettes, in the presence of or near the child or allow the child to remain in any place where any third party is smoking cigarettes, including E-Cigarettes, in the presence of or near the child.
That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
APPENDIX THREE
All previous parenting orders be discharged.
The parents have equal shared parental responsibility for decisions regarding the care welfare and development of the child X born … 2013 (‘the child’).
Each parent have responsibility for decisions regarding the day to day care of the child whilst he is in their respective care.
the child spend time with each of his parents as may be agreed between them, and failing agreement:
a. Until the child commences his Prep Year at school in 2019:
i)in a two week cycle, from Wednesday 3pm to Friday 5pm in the first week, and from Friday 3pm to Sunday 4pm in the second week with the mother , and with the father for the balance of the time;
ii)commencing in September 2018, with the mother from Wednesday 3pm to Friday 5pm in the first week and from Thursday 3pm to Sunday 4pm in the second week and with the father the balance of the time;
iii)commencing in November 2018,with the mother from Wednesday 3pm to Friday 5pm in the first week and from Thursday 3pm to 9am.Mondayin the second week and with the father for the balance of the time;
iv)with the mother for a week commencing 17 December 2018;
v)with the mother for a week commencing 13 January 2019.
b. Once the child commences school:
i)during school terms in a two week cycle with the mother from after school Wednesday to before school Friday in the first week, and from after school Thursday to before school Monday in the second week, and with the father the balance of the time
ii)For the school holidays, with the mother for the first half in even years, and the second half in odd years, and with the father for the first half in odd years and the second half in even years.
The arrangements for time be suspended for special days which shall occur as follows and from the commencement of this order:
a.On the child’ birthday, with the parent who does not have his care on that day from after school/ daycare to 6pm if it is a school day or from 12 noon until 5pm if it is a non-school day;
b.On Mother’s day with the mother from 9am to 5pm on that day;
c.On Father’s day with the father from 9am to 5pm on that day;
d.If the child is not with his father or mother on their birthday, from after school to 6pm if it is a school day, or from 9am to 5pm if it is a non-school day;
e.For Christmas - with the mother from 9am Christmas Eve until 9am Christmas day in odd years, and 9am Christmas Day to 9am Boxing day in even years, and with the father from 9am Christmas Eve until 9am Christmas day in even years, and 9am Christmas Day to 9am Boxing day in odd years.
The parents facilitate the child telephoning or video calling the parent with whom he is not living with at all times he may request, with the parents to ensure that calls take place at least every two days.
For the purpose of changeovers which are not taking place at school or daycare, the parents shall changeover at M Group B Town, and if it is not open, then outside the premises of M Group.
Each parent keep the other informed of their residential address, email address, mobile and landline telephone numbers and any changes to those details within 48 hours of such change.
Each parent keep the other informed of any emergency regarding the child as soon as reasonably practical.
This order authorises the parents to obtain (at their own expense) any information or documentation about the child from his school, medical and other health practitioners, or extra-curricular activity providers that would normally be available to parents.
The parents shall ensure that they do not:
a.Denigrate the other parent, or members of that parent’s family in the presence or hearing of the child, or allow him to·be present or in hearing if others are doing so;
bdiscuss these proceedings or the issues raised in these proceedings with the child, or allow him to be present if others are. doing so;
c.Communicate information or messages to the other parent through the child.
The parents each be at liberty to attend the child' daycare, school or extra-curricular activities for the purposes of activities which would normally be attended by parents.
The mother authorise her treating psychiatrist or psychologist to provide to the father, at his request, no more frequently than once every three months, a written report outlining:
a.the dates of her attendance with that practitioner;
b.whether the practitioner considers that the mother is compliant with the treatment prescribed by them;
c.if the practitioner has concerns about the mother’s health which would impact on her capacity to safely parent the child.
The mother provide to her treating psychiatrist or psychologist an undertaking or authority which allows that practitioner to notify the father if her mental health deteriorates to such an extent that she cannot safely parent the child.