Fisher & Fisher
[2021] FamCA 236
•26 April 2021
FAMILY COURT OF AUSTRALIA
Fisher & Fisher [2021] FamCA 236
File number(s): MLC1093 of 2020 Judgment of: WILLIAMS J Date of judgment: 26 April 2021 Catchwords: FAMILY LAW – PARENTING – Application to discharge the appointment of an Independent Children’s Lawyer – Consideration of applicable principles – Application dismissed – Application for review of parenting orders made by a Senior Registrar for a 3 year old child – Significant factual disputes between the parents – Reliance on the untested evidence of a family report writer – Highly conflictual parental relationship – Held orders discharged and orders made in accordance with proposal of the Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68L, 68LA, 102NA
Family Law Rules 2004 (Cth) rr 18.08. 18.10
Cases cited: Dickens & Dickens [2016] FamCA 115
Goode & Goode [2006] FamCA 1346
Horner & Horner [2018] FamCA 487
Number of paragraphs: 72 Date of hearing: 12 – 13 April 2021 Place: Melbourne Counsel for the Applicant: in person Counsel for the Respondent: Ms Kildea Solicitor for the Respondent: Melanie Wyatt Family Law Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates Pty ORDERS
MLC1093 of 2020 BETWEEN: MR FISHER
Applicant
AND: MS FISHER
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
26 APRIL 2021
THE COURT ORDERS THAT:
1.The father’s application to discharge the Independent Children’s Lawyer is dismissed.
2.All previous parenting orders be discharged.
3.The child, X born … 2018 ("the child") live with the Mother.
4.The child spend time and communicate with the Father as follows:
(a)Each alternate Thursday from the conclusion of childcare (or 3:00pm) until the commencement of childcare (or 9:00am) Friday, commencing EITHER 15 April 2021 or 22 April 2021;
(b)Each alternate Thursday from the conclusion of childcare (or 3:00pm) until 4:00pm Sunday, commencing EITHER 15 April or 22 April 2021;
(c)In the event that Father's Day should occur when the child is in the care of the Mother, from 5:00pm on the day before Father's Day until 4:00pm Sunday;
(d)Such further and other times as may be agreed between the parties in writing.
5.The father's time spent with the child shall be suspended at the following times:
(a)In the event that Mother’s Day should occur when the child is in the care of the father from 5:00pm on the day before Mother's Day until 4.00pm Sunday.
6.Either parent may telephone FaceTime the child between 5:00-5:30pm when the child is in the care of the other parent, with the non-spend time with parent at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.
7.For the purposes of changeover the following shall occur:
(a)at the commencement of time, if the child is in childcare, the parent whose time is commencing shall collect the child from childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time;
(b)at the conclusion of time, if it is a childcare day, the parent who has the child shall deliver the child to childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time.
8.Each party keep the other informed of their current residential address and mobile number and in the event there is any change, advise the other parent within 7 days of such change occurring.
9.Each parent keep the other advised of any serious medical illness or injury suffered by the child whilst in their respective care and forthwith advise the other of the name and contact details of any treating doctor or specialist who attends upon the child, and each parent be hereby authorised by these orders to seek information from any treating practitioner as to the wellbeing of the child.
10.The Mother and Father use a parenting App such as My Family Wizard or such other agreed parenting App for the purposes of all communication about the child, with all information to be child focused and relate to either medical or spend time with arrangements.
11.Both parents are hereby authorised by these orders to receive from the child's childcare a copy of any reports, order forms for photographs, and like documents ordinarily provided to parents, and each of the parents are at liberty to provide a copy of these orders to the relevant body as evidence of such authorisation.
12.Each party is hereby authorised by these orders to attend any childcare functions that parents would ordinarily attend.
13.Each party is hereby restrained by injunction from:
(a)Denigrating the other party or their partner, or family, in the presence of or hearing of the child nor from allowing anyone else to do so;
(b)Exposing the child to family violence;
(c)Discussing these proceedings with the child or exposing the child to affidavit material or materials which are to be used in these proceedings.
14.That the Mother and Father both continue to engage with their respective psychologist and/or mental health professionals and follow all reasonable directions given to them, with any medical or allied health professionals working with either party being permitted to be provided with a sealed copy of these orders and a copy of Ms B's family report dated 10 February 2021.
15.The requirement of s.102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.
16.That all extant interim parenting applications be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fisher & Fisher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This matter was listed for determination in the Judicial Duty List on 12 and 13 April 2021. The applications before the Court were the mother’s Application in a Case filed 2 March 2021 seeking a review of the Orders of the Senior Registrar made on 22 February 2021 and the father’s Response to an Application in a Case filed 7 April 2021.
Background
The father and the mother are the parents of the child, X born in 2018. The parties met online in June/July 2017, cohabited in August 2017, married in 2017 and separated in late January 2020 when the father left the former family home.
The father has another child, Y, who is aged 10 years.
Following separation, the father asserts that the mother withheld X from him for a period of approximately six weeks, prior to him commencing proceedings in the Federal Circuit Court on 4 February 2020.
On 4 March 2020, Orders were made by consent for X to live with his mother and spend time with his father each week from 10 AM Wednesday until 9 AM Thursday and each Sunday from 9 AM until 4:30 PM, notwithstanding that both parents asserted that they had been the primary carer for their son prior to separation.
On 17 April 2020, Orders were made appointing an Independent Children’s Lawyer. On 26 June 2020, Orders were made transferring the matter to this court. On 12 October 2020, I made Orders providing that the orders made 4 March 2020 pertaining to X, remain in full force and effect and that the parties obtain a private family report. Orders were also made in relation to the financial aspect of the application.
On 11 January 2021, the matter was listed before Senior Registrar Hoult, who listed the matter before him on 22 February 2021 for an interim defended hearing about X’s living and spend time with arrangements.
On 10 February 2021, a family report was completed by Ms B and released to the parties. The family report is annexure B 1 to the affidavit of Ms B affirmed 17 February 2021.
On 22 February 2021, Senior Registrar Hoult made orders as follows:
(a)X live with his father each alternate Thursday from the conclusion of childcare (or 3 PM) until the commencement of childcare (or 9 AM) Friday;
(b)each alternate Thursday from the conclusion of childcare (or 3 PM) until the conclusion of childcare (or 3 PM) Monday commencing 4 March 2021;
(c)commencing the first Thursday in May 2021, the child’s time with the father be extended to each alternate weekend from the conclusion of childcare (or 3 PM) on Wednesday until commencement of childcare (or 9 AM) Friday;
(d)in the event Father’s Day should occur when the child is in the care of the mother, from 5 PM on the day before Father’s Day until 4 PM Sunday;
(e)X live with his mother at all other times;
(f)in the event Mother’s Day should occur when the child is in the care the father from 5 PM on the day before Mother’s Day until 4 PM Sunday;
(g)either parent may telephone/face time the child between 5 PM – 5:30 PM when the child is in the care of the other parent, with the non-spend time with parent, at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.
On 11 March 2021, further Orders were made by Senior Registrar Hoult dismissing the mother’s application for a stay of the orders made on 22 February 2021.
On 2 March 2021, the mother filed an Application in a Case seeking a review of the orders of the Senior Registrar made 22 February 2021.
The father’s Response to an Application in a Case was filed on 7 April 2021 and sought orders increasing his time with X, so that the child would spend eight nights a fortnight in his care, a variation of the telephone/face time orders, the dismissal of the Independent Children’s Lawyer, the mother comply with recommendations of the report of Dr C, and various financial and disclosure orders.
The parties were advised that the matters before the court in the Judicial Duty List would be limited to the father’s application to dismiss/discharge the Independent Children’s Lawyer and the interim parenting arrangements for X. A trial of the final applications is scheduled to take place in the next couple of months and the financial matters will be agitated at the final hearing. The only financial order which was made, was an order for mutual discovery in accordance with a minute prepared by Counsel for the mother, in accordance with my direction.
I will firstly address the father’s application to dismiss the Independent Children’s Lawyer and then will address the interim parenting arrangements for X.
APPLICATION TO DISCHARGE THE APPOINTMENT OF THE INDEPENDENT CHILDREN’S LAWYER
The Applicable Law
An Independent Children’s Lawyer is appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”).
Section 68LA of the Act prescribes the general nature of the role of the Independent Children’s Lawyer as follows:
68LA Role of independent children’s lawyer
When section applies
(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3)The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4)The independent children’s lawyer:
(a)is not the child’s legal representative; and
(b)is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a)act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Disclosure of information
(6) Subject to subsection (7), the independent children’s lawyer:
(a) is not under an obligation to disclose to the court; and
(b) cannot be required to disclose to the court;
any information that the child communicates to the independent children’s lawyer.
(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8)Subsection (7) applies even if the disclosure is made against the wishes of the child.
The specific duties of the Independent Children’s Lawyer are prescribed by s. 68LA(5) in the following terms:
(5) The independent children’s lawyer must:
(a)act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
In Dickens & Dickens [2016] FamCA 115, Justice Watts referred to the relevant legal principles applicable to applications for removal of an Independent Children’s Lawyer.
At paragraphs [46] – [53] His Honour said as follows:
Legal principles in respect of the removal of an Independent Children’s Lawyer
[46] In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
11. Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
[47] At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
[48] In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
[49] Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children’s Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
[50] If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
[51] In T & L (2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …
[52] The test that I shall apply is that the father needs to establish that the Independent Children’s Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41]–[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children’s Lawyer to argue firmly and fearlessly for what the Independent Children’s Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children’s Lawyer is in when fulfilling that role because it may be that the Independent Children’s Lawyer is required to challenge the position of one or other of the parents.
[53] It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children’s Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children’s Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.
Paragraph 10 of Horner & Horner [2018] FamCA 487, His Honour Justice Tree, distilled the principles from the relevant authorities as follows:
[10] A number of authorities have considered the removal of an Independent Children’s Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;
•On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
•It is certainly not the case that, even if an Independent Children’s Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;
•It is inevitable that the high standards of competence which the court expects of Independent Children’s Lawyers are not always met. Independent Children’s Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
Father’s allegations against the Independent Children’s Lawyer
At paragraph 5 of the father’s Response filed 7 April 2021, he sought the following order:
5.That the Independent Children’s Lawyer be dismissed from this matter – as a result of failing to act in accordance of obligations and transparency, not being independent, and has kept confidential information received from parties to these proceedings.
The mother and the Independent Children’s Lawyer sought orders that the father’s application regarding the removal of the Independent Children’s Lawyer be dismissed.
In support of his Application, the father relied on paragraphs 22 and 23 of his affidavit filed 10 March 2021 and paragraphs 21 – 27 of his affidavit filed 7 April 2021. Both Counsel for the Independent Children’s Lawyer and Counsel for the mother made submissions.
The father’s complaints against the Independent Children’s Lawyer are as follows:
(a)On Wednesday 17 February 2021, Mr Dunstan forwarded an email to both parents advising that he was supportive of the recommendations contained in the family report. Despite that email, at the hearing on 22 February 2021, the Independent Children’s Lawyer had ostensibly changed his position and had prepared a minute proposing that X spend four nights a fortnight with his father;
(b)The father asserts that the views of the Independent Children’s Lawyer had been influenced, presumably by the mother or her legal representatives, between the email of 17 February 2021 and the hearing on 22 February 2021;
(c)The Independent Children’s Lawyer did not respond to requests from the father in December 2020 for transparency and access, and the father holds concerns that the lawyer for the mother may have benefited from access to the Independent Children’s Lawyer, which has not been extended to the father;
(d)The Independent Children’s Lawyer, upon being asked for “inputs within court hearings” has chosen not to acknowledge the disruption to X from being removed from his asserted primary care with his father, adequately raising with the court the recommendations of independent expert witnesses, reinforce the asserted risks about the mother’s care of the child and her mental health and acknowledge that the family report includes critical observations of each parent with X;
(e)Counsel for the Independent Children’s Lawyer emailed a without prejudice proposal on the morning of 22 February 2021, which demonstrated that he had had prior engagement with the mother’s barrister, which presumably lends weight to the father’s claims that the Independent Children’s Lawyer has been influenced by the mother’s lawyers.
Counsel for the Independent Children’s Lawyer made the following submissions:
(a)there was nothing remarkable or exceptional about the Independent Children’s Lawyer emailing the parties about his general view that X’s time with his father should be increased, and that the Independent Children’s Lawyer and/or his Counsel may have had some correspondence with the mother’s lawyers. Such conduct should not give rise to any concerns that the Independent Children’s Lawyer could potentially be influenced by the mother’s lawyers;
(b)the fact that the Independent Children’s Lawyer did not support the father’s interpretation of the family report does not lead to a conclusion that the Independent Children’s Lawyer lacks impartiality;
(c)the task of the Independent Children’s Lawyer is to act in the best interests of the children represented, and not to align their views to placate parents;
(d)the threshold for removal of an Independent Children’s Lawyer is a high threshold and it would be intolerable to remove an Independent Children’s Lawyer because of a poorly perceived view by a party that the Independent Children’s Lawyer did not necessarily share a parties’ point of view.
Counsel for the mother adopted the submissions of the Independent Children’s Lawyer and additionally submitted:
(a)the father’s complaint against the Independent Children’s Lawyer was not the first time during the proceedings that the father had complained about experts;
(b)the father had complained to Ms B about the process where Y’s mother had objected to Y being interviewed for the family report;
(c)the father had objected to working with Ms D;
(d)there was no case to answer in relation to the father’s application to remove the Independent Children’s Lawyer.
Discussion
The father’s assertion that the Independent Children’s Lawyer’s comments in the email of 17 February 2021 and his position at the hearing on 22 February 2021 were inconsistent, is not supported by an examination of the recommendations of the family report. At paragraph 2 of the recommendations, at page 46 of the report, Ms B recommends that time arrangements increase in a graduated manner over six months until the child spends equal time with each parent. The proposal of the Independent Children’s Lawyer, as at 22 February 2021, is an increase in time between the father and X, which is entirely consistent with a graduated increase in time. I do not accept that there is any inconsistency whatsoever between the email of the Independent Children’s Lawyer of 17 February 2021 and the minute which was proposed at the hearing on 22 February 2021. The minute posed by the Independent Children’s Lawyer is entirely consistent with Ms B’s recommendations, and I note that she does not make any specific recommendations as to the manner of graduated time over a six-month period. I do not accept that the Independent Children’s Lawyer would have been influenced by the mother’s practitioner to reach the proposal which was prepared for the hearing on 22 February 2021. There is no merit in that aspect of the father’s complaint.
The father seems to be under the misapprehension that the recommendations should result in his time with X rapidly changing to 7/8 nights a fortnight, in circumstances where a child who has just turned three had spent two nights a fortnight with his father between separation and 22 February 2021. That view is not supported by the recommendations of Ms B.
I accept the submissions of Counsel for the Independent Children’s Lawyer that there is nothing unusual about an Independent Children’s Lawyer, in discharging his duty and obligations, having contact with both legal practitioners for parties and/or the parties themselves, when they are underrepresented. I do not perceive that the Independent Children’s Lawyer has acted improperly in failing to align his interpretation of the recommendations of the report with the father’s interpretation. He has most properly formed a view at an interlocutory stage of the proceedings, which was entirely consistent with the only independent expert evidence, has conveyed that to the parties and made the appropriate submissions to the court.
With regard to the allegations of lack of transparency of the Independent Children’s Lawyer’s conduct, it would of course be preferable for the Independent Children’s Lawyer to promptly respond to any reasonable enquiries made by a self-represented litigant. However, after reading the father’s email to the Independent Children’s Lawyer dated 4 January 2021, which is Annexure F-3 to the father’s affidavit of 7 April 2021, some of the questions posed are problematic and inappropriate. In the circumstances, I am of the view that the conduct complained of by the father does not justify a discharge of the Independent Children’s Lawyer and cannot be construed under any circumstances as the Independent Children’s Lawyer being derelict in his obligations to the court or representing the interests of the child, X.
For these reasons, I do not intend to discharge the appointment of the Independent Children’s Lawyer and the father’s Application in that regard will be dismissed.
I will now address the interim parenting arrangements for X.
APPLICATION FOR REVIEW OF THE ORDERS OF THE SENIOR REGISTRAR MADE ON 22 FEBRUARY 2021
Rule 18.08 of the Family Law Rules 2004 (Cth) provides for review of decisions by a Senior Registrar, referred to in the Rules as a Registrar.
Rule 18.10 provides that the application for review is heard as an original hearing.
Applicable Law
Part VII of the Family Law Act1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Goode & Goode [2006] FamCA 1346 sets out the pathway for conduct of interim parenting proceedings.
Both parents seek alternate orders to those made on 22 February 2021. The mother seeks orders in accordance with the proposal of the Independent Children’s Lawyer, set out in a Minute of Proposed Orders which was provided to both parties prior to the commencement of the hearing. The proposal is that X live with his mother and spend time with his father four nights a fortnight. The father seeks orders that time with him be increased, so that he lives with his father eight nights a fortnight and with his mother for six nights a fortnight.
The minute of orders prepared by the Independent Children’s Lawyer, and agreed to and supported by the mother is as follows:
1.That all previous parenting orders be discharged.
2.The child, X born in 2018 (“the child”) live with the Mother.
3.The child spend time and communicate with the Father as follows:
a. Each alternate Thursday from the conclusion of childcare (or 3.00pm) until the commencement of childcare or 9.00am Friday, commencing EITHER 15 April 2021 2021 or 22 April 2021;
b. Each alternate Thursday from the conclusion of childcare (or 3.00pm) until 4.00pm Sunday, commencing EITHER 15 April or 22 April 2021;
c. In the event that Father’s Day should occur when the child is in the care of the Mother, from 5:00pm on the day before Father’s Day until 4.00pm Sunday;
d. Such further and other times as may be agreed between the parties in writing.
4.That the father’s time spent periods with the child shall be suspended at the following times:-
a. In the event that Mother’s Day should occur when the child is in the care of the father from 5:00pm on the day before Mother’s Day until 4.00pm Sunday.
5.Either parent may telephone / FaceTime the child between 5.00-5.30pm when the child is in the care of the other parent, with the non-spend time with parent at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.
6.That for the purposes of changeover the following shall occur;-
a. At commencement if the child is in childcare the parent whose time is commencing shall collect the child from childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time.
b. At conclusion of time the if it is a childcare day the parent who has the child shall deliver the child to childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time.
7.That each party keep the other informed of their current residential address and mobile number and in the event there is any change advise the other parent within 7 days of such change occurring.
8.That each parent keep the other advised of any serious medical illness or injury suffered by the child whilst in their respective care and forthwith advise the other of the name and contact details of any treating doctor or specialist who attends upon the child, and each parent be hereby authorised by these orders to seek information from any treating practitioner as to the wellbeing of the child.
9.The Mother & Father use a parenting App such as My Family Wizard or such other agreed parenting App for the purposes of all communication about the child, with all information to be child focused and relate to either medical or spend time with arrangements.
10.That both parents are hereby authorised by these orders to receive from the child’s childcare a copy of any reports, order forms for photographs, and an like documents ordinarily provided to parents, and each of the parents are at liberty to provide a copy of these orders to the relevant body as evidence of such authorisation.
11.That each party is hereby authorised by these orders to attend any childcare functions that parents would ordinarily attend.
12.Each party is hereby restrained by injunction from:-
a. Denigrating the other party or their partner, or family, in the presence of or hearing of the child nor from allowing anyone else to do so;
b. Exposing the child to family violence;
c. Discussing these proceedings with the child or exposing the child to affidavit material or materials which are to be used in these proceedings.
13.That the Mother & Father both continue to engage with their respective psychologist and/or mental health professionals and follow all reasonable directions given to them, with any medical or allied health professionals working with either party being permitted to be provided with a seal copy of these orders and a copy of Ms B’s family report dated 10 February 2021.
14.That all extant interim parenting applications be dismissed.
15.Usual s65DA(2) & s62B.
In his Response, the father seeks the following variation of the orders of 22 February 2021:
Addition of existing paragraph 9
2. Commencing 1 June 2021, the child’s time with the father pursuant to order 9(a) hereof be extended to the three night period each alternate weekend for the conclusion of childcare (or 3 PM) on Tuesday until the commencement of childcare (or 9 AM) Friday.
Addition of existing paragraph 9
3. Commencing 9 June 2021, the child’s time with the father pursuant to order 9(b) hereof be extended to the five night period each alternative weekend for the conclusion of childcare (or 3 PM) on Wednesday until the commencement of childcare (or 9 AM) Monday.
Amendment to existing paragraph 11
4. Either parent may telephone/face time the child between 5 PM – 5:30 PM on Tuesdays and Thursdays when the child is in the care of the other parent, with the non-spend time parent at that time to initiate the call to the mobile of the other parent, with such parent facilitate the child speaking to the other parent.
Neither of the parents nor Counsel for the Independent Children’s Lawyer sought to agitate the issue of parental responsibility at the interim hearing.
The parents agree:
(a)subsequent to the orders made on 4 March 2020, X lived with his mother and spent time with his father overnight for two nights a fortnight and each Sunday, until the orders made on 22 February 2021;
(b)subsequent to the orders made on 22 February 2021 X has lived with his mother and spent time with his father for five nights a fortnight;
(c)X currently attends child-care four days a week;
(d)both parents have mental health difficulties;
(e)the family report writer noted at paragraph 158 of the family report that the father had been diagnosed with major depressive disorder in December 2019 in the context of multiple stressors including the loss of employment, child custody matters for Henrik and supporting the mother who is struggling to cope with parenting at that time;
(f)the family report writer noted at paragraph 164 of the family report that the mother had been diagnosed by Dr C as having cluster B personality traits;
(g)the parties have a highly conflictual parenting relationship.
The submissions of Counsel for the Independent Children’s Lawyer in support of the Minute of Orders proposed by him were as follows:
(a)both parents had mental health issues referred to in the previous paragraph;
(b)at paragraph 159 of the family report, Ms B identified that the father currently presents with adjustment difficulties with mixed disturbance of emotions and conduct;
(c)there is a risk that the father’s resentment will not subside until he is satisfied with the outcome of court proceedings;
(d)at paragraph 164 of the family report, the report writer refers to the mother’s mental health problems as diagnosed by Dr C and Dr F and her difficulty with her self-image and emotional regulation;
(e)the mother’s material is extensive and details her concerns about the father and his parenting;
(f)prior to the orders of 22 February 2021, X spent two nights overnight each fortnight with his father together with each Sunday from 10 AM to 4:30 PM;
(g)the orders of 22 February 2021 represented a major increase in time between X and his father;
(h)the family report writer had difficulties assessing who was historically the primary carer of X;
(i)Ms B was of the opinion that there was no reason why ultimately the parties could not share care of X;
(j)Ms B’s recommendation was for a transition over a six-month period from the two nights a fortnight regime to shared care;
(k)Ms B did not refer to the configuration of the proposed transition over a six-month period;
(l)the proposed orders for four nights a fortnight were consistent with a transition and increase in time;
(m)the report writer identified that the parents had a highly conflictual relationship;
(n)it was unusual that Ms B had recommended shared care for such a high conflict family;
(o)the parties did not have any shared experiences, trust or know each other to any degree prior to the birth of the child;
(p)moving to a shared care arrangement in such a highly conflictual family is fraught with difficulties;
(q)notwithstanding the high conflict between the parties, there should be an increase in time because both parents say that the other parent has the physical capacity to care for the child, but lacks the emotional capacity to do so;
(r)the mother is concerned about the father’s emotional responses and hostility towards her;
(s)both parents agree that X would be able to cope with four nights away from either parent, the father at paragraph 32 of his affidavit of 7 April 2021 and the mother by her support of the proposal of the Independent Children’s Lawyer;
(t)given the hostility between the parents and their shared confidence that X could cope with at least four nights then the proposal of the Independent Children’s Lawyer is a conservative increase in X’s time with his father, which will be reviewed at trial;
(u)the proposal is a conservative position taking into account the recommendations of the family report writer and her concerns about the parties respective emotional states and level of conflict;
(v)the proposal is consistent with the general recommendations of the family report, which the orders of the Senior Registrar were not.
The submissions of counsel for the mother were as follows:
(a)the s 11F assessment which took place on 24 June 2020 recommended that the time in accordance with the orders of 4 March 2020;
(b)the family report recommendations represented a substantial increase in the time for X with the father, who at the time the orders made by the Senior Registrar, was two years old;
(c)the family report is one piece of evidence and the mother should be entitled to challenge the report and recommendations at trial, rather than immediately implement the recommendations;
(d)there are significant underlying issues in the parental relationship, including extreme levels of conflict which contraindicate a shared care arrangement;
(e)in her affidavit of 6 April 2021 at paragraph 35, the mother deposes to X’s significant difficulties since time with his father was increased;
(f)Ms B’s comments at paragraph 174 of the family report about X’s attendance at childcare are incorrect as the mother works four days a week;
(g)X has attended childcare for two days a week for a considerable period and is a settled and in a routine;
(h)the mother risks losing a child care subsidy to enable X to continue at childcare if X is not taken to childcare;
(i)the mother has significant concerns about time which has taken place with the father and the father’s capacity to moderate his behaviour;
(j)X has been exposed to antisocial behaviour by the father at change over;
(k)the father is particularly resentful of the mother and as identified by Ms B, will not be happy unless he achieves an outcome he desires;
(l)the conflictual difficulties between the parents have increased since the increase in time which are set out at paragraphs 38 of the mother’s affidavit of 6 April 2021;
(m)the difficulties include the father failing to respond to the mother’s concerns about where time is taking place and whether or not the child was about to catch a flight;
(n)the father uses medical updates as an opportunity to be rude to the mother;
(o)it is not a case where the parents are capable of a cooperative co-parenting arrangement and an increase in time can only exacerbate the current difficulties between the parents;
(p)an email forwarded by the mother to the father about X’s proposed surgery was an opportunity for the father to abuse and criticise the mother;
(q)there are mutual intervention orders between the parents and the father has an extant application for an intervention order against the maternal grandmother which is creating additional difficulty and distress;
(r)Ms B identified that X’s exposure to his father’s hostility towards his mother is an ongoing possibility;
(s)the mother has her mental health adequately treated and is currently under the care of a psychologist, family violence counsellor and psychiatrist and has complied with the recommendations of Dr C.
The father’s submissions were as follows:
(a)he asserts he was X’s primary carer prior to separation;
(b)the s 11F assessment was “questionable” as it relied upon a child protection report prepared in response to a Notice of Risk in circumstances where the father was only interviewed on one occasion;
(c)the allegations of the mother in the child protection report are without foundation;
(d)X’s relationship with his brother Y needs to be promoted which necessitates increasing the time between X and his father;
(e)he has maintained his utmost integrity throughout the challenging court process;
(f)paragraph 21 of the family report refers to the mother slapping the father and that allegation has not been taken as seriously as is warranted;
(g)because the mother has placed X in childcare for four days a week, she effectively only spends time with him on Saturdays and he is prepared to spend more time with X so that he will not need to attend childcare;
(h)the mother’s evidence is unreliable and she reported to the family report writer at paragraph 113 that she has a good relationship with the maternal grandmother whereas the subpoenaed documents indicate otherwise;
(i)he consented to the orders on 4 March 2020 because he had not seen the child for six weeks and the orders did not reflect his previous caring responsibilities for the child;
(j)the mother’s antisocial behaviours which were apparent during the marriage are continuing in the course of the litigation;
(k)he asserts that the mother has engaged in falsification of reports to DHHS, which ultimately influenced the s 11F assessment;
(l)the 30 minute assessment at the s 11F was not sufficiently comprehensive;
(m)Ms B’s assessment of the parental risk of the parents was that the father presented a low risk and the mother’s risk was low to moderate;
(n)he has concerns about the mother’s tendency to engage in positive impression management whereas the mother’s integrity is questionable;
(o)the observations in the family report is the first opportunity for the court to obtain any objective assessment of the capabilities of each parent;
(p)Ms B notes the mother’s lack of promotion of the relationship between X and his father, which is also identified by Dr C to the extent that he had concerns about the mother’s personality vulnerabilities which made it difficult for her to support a relationship between X and his father;
(q)he had significant concerns about the face time calls and the abrupt end of the calls with no opportunity to say goodbye;
(r)the orders of Senior Registrar Hoult reduced X’s attendance at childcare in circumstances where his father is prepared to care for him;
(s)the Senior Registrar obviously thought the orders he made were in the child’s best interests particularly as the orders do not refer to a live with and spend time with arrangement;
(t)there is no reason why X should not continue with the existing arrangement and progress in accordance with the orders as from his father’s perspective he has thrived with the new arrangements;
(u)a regression to the orders as proposed by the Independent Children’s Lawyer would result in further disruption to the child’s routine;
(v)the family report writer identified him as the more confident parent and X wants to spend more time with his brother.
Discussion
X is a child who has recently turned three and has experienced enormous upheaval in his life. He is dearly loved by both parents and it is regrettable in the extreme that the parents have such an acrimonious and highly conflictual relationship.
Both of the parents make significant allegations about the emotional and psychological stability of the other parent, whilst remarkably acknowledging that the other parent is capable of caring for X’s physical needs and does not pose a threat in this regard.
The family report identifies the mental health challenges faced by both parents and the consequent impact of those challenges on both X and their lack of capacity to cooperatively co-parent the child.
Both parents assert that they were the primary carer of X prior to separation which occurred in late January 2020 when X was aged 22 months. Subsequent to separation X did not spend time with his father until the orders of 4 March 2020. Thereafter, his time was limited to one night of overnight per week with the addition of daytime on Sundays.
Irrespective of the parent’s claims to have been the primary carer for the child prior to separation, between 4 March 2020 and 22 February 2021 it is evident that X lived with his mother and that she was his primary carer during that time.
The Father is scathing about the s 11F assessment and the DHHS report which was relied upon at the assessment and is of the firm view that the time arrangements prescribed by the Orders of 4 March 2020 are clearly prejudicial to him and his relationship with X.
The orders of the Senior Registrar of 22 February 2021 represented a dramatic change in the living arrangements of the child who was not yet three years old.
Unsurprisingly, the mother deposes to significant concerns about that and his capacity to manage the existing five nights a fortnight regime with his father, let alone the increase which is set to occur by virtue of paragraph 9(c) of the orders of 22 February 2021.
On the other hand, the father is dismissive of any asserted inability of X to cope with time away from his mother and submits that time is going exceedingly well and that X is enjoying spending more time with his half sibling. The disputed issues will require determination after a robust testing of the evidence of both parties.
There was also a dispute between the parents about the necessity for X to attend childcare four days per week. The father sought to rely on the comments of the report writer which indicated that the mother had enrolled X in excess childcare, which could be indicative of her lack of parental capacity. Quite properly, the mother’s Counsel objected to any such inference and submitted that the mother indeed works four days per week and that is why X attends childcare to that extent.
The father’s submission is predicated upon the fact that he is available to care for X on additional days and that would have the beneficial effect of reducing X’s time in childcare whilst his mother is at work.
Whilst I understand the father’s concerns, X has been in a routine attending childcare for a considerable period and there was no evidence that he has suffered any detrimental effects because of his attendance.
As this is an interim application, I am unable to make any definitive findings about the respective merits of the assertions of the parents about X’s capacity or otherwise to cope with the existing arrangements and any foreshadowed increase.
All parties relied upon the comments of the family report writer in terms of the mental health challenges facing both parents, albeit there was a tendency of the father to cherry pick the most favourable aspects of that report, without making submissions about following sentences which qualified to some extent the comments about the difficulties he faces.
There was also significant agitation by the father about the report writers assessment of him as a parent after administering diagnostic tools, which resulted in an assessment of his parental risk as low, whereas the mother’s was low to moderate. As pointed out by Counsel for the mother, in the family report, Ms B opined that the father was at risk of further deterioration with his mental health by virtue of the stress of the proceedings and in the event he does not achieve a final outcome in accordance with his aspirations.
Ms B correctly identified that the parties were in a highly conflictual situation and that it would seem likely that the high conflict warfare would be unlikely to abate, particularly during the course of the proceedings and possibly continuing thereafter.
The father relied on his perceptions of the recommendations of the family report writer that time should increase to a shared care arrangement. What he did not consider was any gradual or nuanced increase in X’s time with his father, which would be age-appropriate and of assistance to enable a three-year-old to adapt to the significant change in his life.
The father rejected the mother’s submissions that X’s time should revert to time as proposed by the Independent Children’s Lawyer and saw a change in time as disruptive to X. That completely ignores the further proposed increase of time in accordance with the orders of 22 February 2021 and the father’s own proposal that time should increase by a further two nights a fortnight so that X would primarily live with his father and spend six nights a fortnight with his mother, which could also be viewed as disruptive to his current routine.
Such an arrangement was not suggested by the family report writer or in any other independent evidence before the court.
I am of the view, after having considered the relevant legislative pathway and the applicable s 60CC(3) considerations that the proposal of the Independent Children’s Lawyer is in the current best interests of X. I accept the submissions of Counsel for the Independent Children’s Lawyer and the mother in this regard. I share the concerns of Counsel for the Independent Children’s Lawyer about the implementation of the Orders made 22 February 2021, in circumstances of such a highly charged and conflictual relationship between the parents.
The proposal is also inherently consistent with the recommendation of the family report writer, insofar as it provides for a gradual increase in X’s time with his father to enable the relationship between them to develop and for more time between father and child than the orders of March 2020.
I am cognisant that there will soon be a trial of the dispute between the parties and that the family report is but one piece of evidence, which will be no doubt be subject to rigorous testing at the trial.
I intend to make orders in accordance with the Proposed Minute of Orders of the Independent Children’s Lawyer in relation to the parenting dispute.
Orders for discovery were made in chambers, by consent , in terms of the minute provided by Counsel for the mother in accordance with my direction and I will make the necessary orders pursuant to section 102NA of the Family Law Act 1975 (Cth) to enable the father to be represented at trial.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 26 April 2021
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