Fletcher & Parkins

Case [2022] FedCFamC1F 804

Federal Circuit and Family Court of Australia

(DIVISION 1)

Fletcher & Parkins [2022] FedCFamC1F 804

File number(s): BRC 1728 of 2018
Judgment of: BAUMANN J
Date of judgment: 28 October 2022
Catchwords:

FAMILY LAW – PROPERTY – Disputed pool- what orders achieve justice and equity

FAMILY LAW – PARENTING – Father seeks equal time and mother seeks to reduce time between the children and the father – Parental responsibility – Father’s mental health challenges – Children to spend substantial and significant time – Order made for equal shared parental responsibility  
Legislation: Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA, 75, 79
Cases cited:

C & C (2005) FLC 93-220

Duarte & Morse [2022] FedCFamC1A 66

Fletcher & Parkins [2020] FCCA 96

Goode & Goode (2006) FLC 93-286

Hickey & Hickey (2003) FLC 93-143

Jabour & Jabour [2019] FamCAFC 78

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Mayhew & Fairweather (2022) 64 Fam LR 633

Preston & Preston [2022] FedCFamC1A 157

Rosati & Rosati (1998) FLC 92-804

Stanford & Stanford (2012) 247 CLR 108

Surridge & Surridge (2017) FLC 93-757

Townsend & Townsend (1994) 18 Fam LR 505

Vallans & Vallans (2019) 60 Fam LR 193

Welch & Abney (2016) FLC 93-756

White & Tulloch v White (1995) FLC 92-640

Division: Division 1 First Instance
Number of paragraphs: 127
Date of last submission/s: 21 December 2021
Date of hearing: 6-8 May 2020
Place: Brisbane
Counsel for the Applicant: Mr Jordan
Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers
Counsel for the Respondent: Mr Drysdale (as he then was)
Solicitor for the Respondent: Hopgood Ganim Lawyers

ORDERS

BRC 1728 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR FLETCHER

Applicant
AND:

MS PARKINS

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

28 OCTOBER 2022

THE COURT ORDERS:

1.That all previous parenting Orders be discharged save for the Orders for term time the children spend with the father which shall continue until the end of the 2022 final school term.

Parental responsibility

2.That the parents have equal shared parental responsibility for the children X born 2006 (“X”) and Y born 2010 (“Y”) (collectively “the children”).

3.That notwithstanding Order 2 herein, the mother and father shall each be responsible for the day-to-day care, welfare and development of the children while the children are in their respective, individual care.

Live with arrangement

4.That the children live with the mother when they are not living with the father.

5.That unless otherwise agreed in writing between the parents, commencing at the start of the children’s 2023 school year and during school terms, the children shall spend time with the father as follows:

(a)For X:

(i)from Thursday after school (or 3.00pm if a non-school day) to Monday before school (or 9.00am if a non-school day) in the first week and each alternate week thereafter; and

(ii)from Thursday after school (or 3.00pm if a non-school day) to Friday before school (or 9.00am if a non-school day) in…

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AGLC
Fletcher & Parkins [2022] FedCFamC1F 804
Case
[2022] FedCFamC1F 804
Decision Date

CaseChat Overview and Summary

In the matter of Fletcher & Parkins, the parties were engaged in a dispute concerning the care, custody, and control of their two children, X and Y. The case was heard and determined in the Family Court of Australia, where the primary concern was to ascertain the best interests of the children in light of the parents' differing views on the appropriate parenting arrangements.

The central legal issues the court had to address involved determining the most suitable living arrangements for the children, given the parents' divergent views on the matter. The court had to consider the physical, emotional, and educational needs of the children, as well as the capacity of each parent to meet those needs. Moreover, the court needed to balance the parents' right to participate in the children's lives against the need to protect the children from exposure to any potential conflict or harm resulting from the parents' disagreements.

The court's reasoning was grounded in the statutory framework provided by the Family Law Act 1975 (Cth). It considered the children's best interests as the paramount concern, taking into account the various s 60CC(3) factors, including the children's expressed views and the need to protect them from harm. The court found that neither parent posed a risk of physical harm, abuse, neglect, or family violence to the children. Although the parents' disagreement could potentially cause psychological harm to the children if it escalated, the court found that, at the time of the decision, the children were not experiencing such harm. The court emphasised the importance of the children's ability to develop their relationships with their peers and grow as individuals, while also acknowledging the potential for the children to align with one parent if the parents' conflict became too pronounced.

The court concluded that the children's best interests would be served by an arrangement that allowed them to maintain a close relationship with both parents, with a slight variation in the time spent with each parent to accommodate their respective needs and circumstances. The court ordered that X and Y should live primarily with their mother, with the father having substantial and significant time with them, including alternating weekends and certain weekdays. The specific details of the parenting arrangements were left to the parties to work out, with a requirement to attend mediation if they were unable to reach an agreement.

Orders

Orders of the court

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Background

Background to the litigation

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”.Relevant background To provide a context for this dispute, the following background is provided, mostly uncontroversial. Some of it is more relevant to the property dispute. Statements of fact which follow in this Judgment should be construed as findings of fact. The father is now 51 years of age and the mother is now 49 years of age. In 1990 the husband enlisted in the Defence Force and was ultimately discharged in late 2005, having ceased active employment months earlier. The parties commenced cohabitation in City J in late 1996/early 1997 and were married in late 2002. After cohabitation, the parties lived in Defence Force quarters; purchased a home at K Street, Suburb L (for $149,000); and the husband was at times deployed overseas serving in Country M and Country N. It is the husband’s service in these war zones which have been the catalyst for some significant mental health issues. The wife, a professional, secured a position working in Country O, which she commenced in early 2004, with the husband joining her in City P, Country O shortly after. As the husband was on leave from the Defence Force (pending his discharge), he was able to undertake further tertiary studies. The parents’ first child X was born in 2006, living firstly in Country O, before moving to City Q, Country R in mid-2007, when the wife secured another position in that country. Whilst working as an educator, the husband completed further studies, attaining in 2010 a tertiary degree (which complimented an earlier degree the father obtained in 2005). In late 2007, whilst still living in Country R, the parties purchased the property at S Street, Suburb T for $720,000. The parties moved into the home in around early 2011 after returning to Brisbane in mid-2010 for the birth of Y, who was born in 2010, and after the birth of Y returning to Country R to prepare for the permanent return to Australia. In late 2010, the wife commenced employment with U Pty Ltd, as a manager. Although not required for cross-examination, the mother’s employer through an affidavit from Mr V, provided details of the mother’s work duties and role within the company, until her redundancy in early 2019, receiving a net payment on termination of $257,235.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The expert evidence that I have been offered included:(a)the affidavit filed 24 April 2020, and cross-examination of the father’s treating psychiatrist Dr B. In her role (which commenced with an initial consultation in late 2015), she has provided treatment to the father. She was the health practitioner who the father contacted after he became aware of the costs Orders made 21 January 2020. She has provided reports for these proceedings and to the DVA, some of which are attached to her affidavit. See also letter of 3 May 2016 to VVCS (Exhibit 6). From these reports and cross-examination, I accept that:(i)the father has a diagnosis of several mental health and dependency issues, with some in remission;(ii)the father is medicated including antipsychotic medication; appears to be compliant with his medication and appointment regime, which includes ongoing therapy, designed to address his difficult and chronic symptoms;(iii)he displays good insight into his illness and increasing ability to discuss emotional issues. He will require ongoing and long-term psychiatric input from a psychologist and continuing psychological therapy;(iv)the father had, as at the time of the report dated 1 May 2019 “made significant improvements in terms of his mental health over the last four years”. Not surprisingly, after the father’s admission to AA Hospital, in early 2020, Dr B was invited to provide a further report. Her report dated early 2020 (and the notes of her consultation on that date) are before me (Exhibit 8). Dr B opined the father required hospitalisation as he “suffered an acute exacerbation of […] symptoms”, but engaged well with therapy during the admission, and on discharge was “euthymic and had learned new psychological strategies to manage his symptoms”;(v)as a result of the mental health condition, mood and anxiety symptoms can mildly fluctuate and he continues to suffer from re-experiencing phenomena such as nightmares and “flashbacks”;(vi)Dr B indicated she generally agreed with Dr BB's report dated early 2020 (pages 101 to 115 of the mother’s annexures - Exhibit 2), procured by solicitors retained by the father for a civil legal claim, which concluded that the father “is totally and permanently incapacitated from undertaking any form of remunerative employment and has been so since mid-2016.”I accept the evidence of Dr B acknowledging (as she does) that as a treating psychiatrist she is not entirely independent. However, her longitudinal engagement with the father persuades me to accept her opinions where they may differ from those expressed by Dr BB – who conducted a cross-sectional/one off examination with less data available to him (and was not tested in cross-examination).(b)the affidavit of Dr C attaching his report of late 2019. The report identifies that:(i)in late 2016 the father was admitted to a specialist unit of the CC Hospital “for purposes of detoxification and to attend the 2 week inpatient program”;(ii)subsequently, he has maintained ongoing regular follow-up and has described abstinence since at least early 2018, and his assertion has been supported by testing; and(iii)the father is considered to be in prolonged remission with no evident present functional impact or symptoms, and given his extended period of abstinence and motivation not to continue abstinence “his risk of relapse to […]” is low.Dr C has seen the father since the report of late 2019 (and I infer after the father’s hospital admission in early 2020), and he deposed that “there have been no significant changes in relation to substance abuse or Mr Fletcher’s frequency of follow up contact and he continues to have blood tests (liver count and CDT)”. Dr C was not required for cross-examination. I accept his evidence and opinion;(c)the affidavit filed 23 April 2020 and cross-examination of the father‘s current treating Clinical Psychologist Ms D. In her role as the father‘s treating Psychologist since mid-2017, Ms D has provided specific psychological therapy. She was aware of his hospitalisation in early 2020 and that from his most recent consultation in early 2020, she formed the opinions that:(i)he was coping well;(ii)post discharge his normal sleep pattern (being 50% in bed/50% on sofa) had returned and the father told her his nightmares had reduced; and(iii)although financial issues do not arise often in consultations, (the father having the benefit of an unlimited number of consultations funded by the DVA) the paramount issue for him is the parenting issue. She opined that it would have a negative impact on the father if reduction in his time with the children occurred;(iv)he “turns up” for appointments. Ms D works “collaboratively” with Dr B. She expressed, and explained, her concerns about being obliged to report to the mother about the father’s treatment and functioning, as it could affect their therapeutic relationship.I accept the evidence of Ms D.conclusion

Ratio Decidendi

Legal Principle Established

Neither child is at risk of physical harm, abuse, neglect or family violence in the care of either parent. The level of parental disagreement, although passive at times, is not, in my assessment, causing the children psychological harm – however if it erupts after this Judgment (which I could not totally discount), these mature sensitive children will pick up on the tensions. At their developmental stages, there is a risk that if the children sense their parents are more interested in fighting between themselves over little issues, and less interested in supporting the children’s growing needs for independence, they could easily “align” with one parent, more out of a desire for a more calm and comfortable life. Ultimately, the extra day here or there is not likely to be seen by the children as important, as being in an environment where they can do their homework, see and develop their relationships with their peers through school and extra-curricular activities, and simply grow as people. Sadly, the parents will learn (if they have not already identified) that they are not the centre of their children’s every thinking and waking moment.Additional considerations I make the following findings, within the matrix of the relevant s 60CC(3) considerations, relying upon earlier findings without necessarily repeating them, and in a narrative style. I take into consideration the wishes and feelings expressed by the children to Mr W contained in his second family report are paragraphs 7.1 to 7.21 (X) and paragraphs 7.22 to 7.34 (Y). I accept that those wishes were expressed after the children had adjusted to and experienced the change of routine prescribed by the consent interim order. X described living across two houses as “pretty simple”; expressed no preference for a change of routine; wants to see her father “at least once a week”; was less certain about how her father could help with homework; knew her father “wants more time”; and exhibited a “very close attachment with each parent”. Y expressed some worries around his experience with peers; said he “wants week-about time with each parent so that he has the same with each”; observed he likes having friends over at his mother’s home but “that doesn’t happen much at dad’s”; knew his father wants equal shared care “but he did not know what his mother wants”. Although both parents do provide some evidence of statements they say the children have made to them about parenting arrangements, I do not regard these statements as definitive. I take the children’s expressed views into consideration. The children have a strong relationship with each parent and each other. I accept the evidence of Mr W that if the arrangements for the children with the parents included Y having slightly more time with the father then does X, that would not adversely affect the sibling relationship. These parents have properly maintained the children and generally participated in making decisions about them since separation. I accept there have been disputes about child support and other financial issues and also payment of private school fees, however the parents were, by final submissions, able to agree on the children’s secondary education schools and, I infer, have “worked out” ways to pay the fees associated with those schools.