Garrod & Harbig (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garrod & Harbig (No 2) [2024] FedCFamC1F 756

File number: NCC 3839 of 2021
Judgment of: AUSTIN J
Date of judgment: 13 November 2024
Catchwords: FAMILY LAW – PARENTING – Final orders – Where the parties were in a same-sex relationship – Where the applicant is the biological mother of the child and the respondent is the other parent – Where final orders were made in December 2019 for the child to live with the respondent and to spend no time with the applicant – Where the parties agreed a material change in circumstances warranted variation of the final orders – Where the applicant has demonstrated her abstinence from illicit drug use – Where the child lives with the respondent in Queensland and the applicant lives in Sydney – Where the essential issue at trial was the length of time the child should spend with the applicant during school holidays – Where the child told the Family Consultant he does not want contact with the applicant – Where the family consultant considered his view “very extreme” and perhaps due to a sense of loyalty to the respondent – Where the child has communicated electronically with the applicant on several occasions and expressed his content doing so to third parties – Where the applicant understands the child’s reintroduction to her needs to be gradual – Where the respondent would support the child having a relationship with the applicant – Where the parties agreed they and the child should participate in reunification therapy – Ordered the child to spend gradually expanding time with the applicant
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65Y, 69ZN, 69ZX, 95

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Flanagan v Handcock (2001) FLC 93-074; [2000] FamCA 150

Garrod & Harbig [2024] FedCFamC1F 464

RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47

Division: Division 1 First Instance
Number of paragraphs: 68
Date of hearing: 4 & 5 November 2024
Place: Newcastle
Counsel for the Applicant: Mr Hegedus
Solicitor for the Applicant: Supreme Justice Lawyers
Counsel for the Respondent: Ms Adams-Nash
Solicitor for the Respondent: Koulouris & Associates Pty Ltd
Counsel for the Independent Children's Lawyer: Ms Merrett
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

NCC 3839 of 2021

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

MS GARROD

Applicant
AND:

MS HARBIG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 NOVEMBER 2024

THE COURT ORDERS THAT:

1.All former orders made in respect of the child X, born in 2013, are discharged.

2.Subject to Order 3 hereof, the respondent shall have exclusive parental responsibility for the child in respect of all “major long-term issues”,…

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Details
Case
[2024] FedCFamC1F 756
Decision Date

CaseChat Overview and Summary

The dispute between the parties, who were in a same-sex relationship, centred on the restoration of the child's relationship with the applicant, who is the child's biological mother. The respondent, who is the child's other parent, has been caring for the child since 2018, when the applicant left the child in her care temporarily. The applicant sought to restore her relationship with the child, and the parties agreed this should occur. The only issue that remained was how best to accomplish this objective. The court was required to decide on the appropriate parameters for the reintroduction of the child to the applicant, including the length of time the child should spend with her during school holidays, whether the applicant should provide a negative illicit drug hair follicle test before unsupervised visits, and whether the applicant should be restrained from allowing the child to come into contact with her partner.

The court found that the child should spend gradually expanding time with the applicant, starting with supervised visits at a contact centre and progressing to unsupervised visits during school holidays. The court also found that the applicant should provide a negative illicit drug hair follicle test before unsupervised visits, but only once, and that the applicant should not be restrained from allowing the child to come into contact with her partner. The court considered the child's views, which were expressed to a Family Consultant, and found that while the child did not want contact with the applicant, his views may have been influenced by a sense of loyalty to the respondent. The court also considered the child's communications with the applicant and his expressed contentment with them, as well as the applicant's understanding that the reintroduction to her should be gradual. The court also noted that the respondent would support the child having a relationship with the applicant.

The court ordered that all former orders be discharged and that the respondent have exclusive parental responsibility for the child in respect of all "major long-term issues." The child shall live with the respondent, and the parties shall participate in reunification therapy with the object of restoration of the child's relationship with the applicant. The child shall spend gradually expanding time with the applicant, starting with supervised visits at a contact centre and progressing to unsupervised visits during school holidays. The parties shall also ensure the child communicates with the applicant by videochat at specified times. The parties are restrained from administering corporal punishment to the child or denigrating the other in the presence or hearing of the child. The respondent is authorised to apply for a passport for the child without the applicant's written consent and is permitted to travel with the child outside Australia without the applicant's written consent, provided such travel does not conflict with the orders. The respondent is also restrained from changing the child's name.

Orders

Orders of the court

NCC 3839 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GARROD

Applicant

AND:

MS HARBIG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

13 NOVEMBER 2024

THE COURT ORDERS THAT:

1. All former orders made in respect of the child X, born in 2013, are discharged.

2. Subject to Order 3 hereof, the respondent shall have exclusive parental responsibility for the child in respect of all “major long-term issues”, as that phrase is defined under s 4(1) of the Family Law Act 1975 (Cth).

3. The respondent is restrained from changing the child’s name.

4. The child shall live with the respondent.

5. The parties shall do all acts and things reasonably necessary to ensure they and the child participate in “reunification therapy” with the object of restoration of the child’s relationship with the applicant, for which purpose the following conditions shall apply:

(a) the applicant shall notify the respondent of the name and address of the therapist to be used within seven days hereof;

(b) both parties shall register and complete intake procedures with the therapist within seven days thereafter;

(c) both parties shall make themselves and the child available for sessions with the therapist;

(d) both parties shall comply with all reasonable directions provided by the therapist for participation by them and the child in the therapy;

(e) both parties shall continue their engagement with the therapy under these conditions for not less than six months;

(f) the cost of the child’s therapy shall be borne by the parties in equal shares and each party shall bear the cost of their individual therapy;

(g) the parties are authorised to provide copies of these orders, the published reasons, and the family report dated 5 October 2023 to the therapist.

6. The parties shall do all acts and things reasonably necessary to ensure the child spends time with the applicant as follows upon the following conditions:

(a) As from the date six months hence (or from any earlier date upon which the parties agree in writing), for two hours on both the Saturday and the Sunday of the third weekend of each calendar month for four months under supervision at the L Contact Centre, Town M, Queensland, for which purpose:

(i) each party shall forthwith contact and satisfactorily complete any intake procedures with the contact centre; and

(ii) the parties shall pay the supervision costs in equal shares.

(b) Upon completion of Order 6(a), from 10.00 am until 3.00 pm on both the Saturday and the Sunday of the third weekend of each calendar month for two months, for which purpose:

(i) the applicant is restrained from departing Town M, Queensland with the child; and

(ii) the parties shall ensure the child’s exchange at a specified location in Town M, Queensland, with the respondent delivering him at the commencement and the applicant delivering him at the conclusion.

(c) Upon completion of Order 6(b), from 10.00 am Saturday until 3.00 pm Sunday on the third weekend of each calendar month for two months, for which purpose:

(i) the applicant is restrained from departing Region N, Queensland with the child; and

(ii) the parties shall ensure the child’s exchange at a specified location at Town O, Queensland, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion.

(d) Thereafter:

(i) for one week in the Queensland winter school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the second Saturday, for which purpose the parties shall exchange the child at the airport in Region P, Queensland, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion; and

(ii) for two weeks in the Queensland summer school holidays, from 12.00 noon on 10 January until 12.00 noon on 24 January each year, for which purpose the parties shall exchange the child at the airport at Sydney, New South Wales, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion.

7. As from the commencement of Order 6(b), the parties shall do all acts and things reasonably necessary to ensure the child communicates with the applicant by videochat at the following times, for which purpose the applicant shall initiate the call and the respondent shall ensure the child’s reception of the call:

(a) each Wednesday between 6.00 pm and 6.30 pm (Queensland time);

(b) at 9.00 am on Christmas Day;

(c) at 9.00 am on Easter Sunday;

(d) at 9.00 am on Mother’s Day; and

(e) at 6.00 pm on the child’s birthday.

8. The parties shall forthwith inform the other of the mobile telephone number and email address at which they can be contacted in an emergency.

9. The respondent shall provide to the applicant copies of the child’s school reports and school photographs forthwith upon her receipt of them.

10. The parties are restrained from:

(a) administering corporal punishment to the child or permitting another person to do so;

(b) denigrating the other in the presence or hearing of the child, or permitting another person to do so;

11. Pursuant to s 68B of the Family Law Act 1975 (Cth), the applicant is restrained from entering upon or approaching within 100 metres of:

(a) the respondent’s residence; and

(b) any school attended by the child.

12. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the child.

13. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the respondent is authorised to apply for a passport for the child without the applicant’s written consent.

14. For the purposes of s 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth), the respondent is permitted to travel with the child outside Australia without the applicant’s written consent, provided such travel does not conflict with Order 5, 6 and 7 hereof.

15. Within seven days hereof the respondent shall cause the child to confer privately with the Independent Children’s Lawyer to have explained to him the effect of these orders and the reasons for such orders.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

18. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The dispute initially concerned the rather narrow question of whether the child’s best interests would be advanced by fresh orders being made to compel the restoration of his former relationship with the applicant, which relationship has been dormant for well over five years. However, once the hearing was underway, it emerged the parties and the Independent Children’s Lawyer (“the ICL”) agreed the child’s relationship with the applicant should be restored and so the dispute narrowed even further to how that objective should best be accomplished. In fact, the dispute was so narrow that it was only barely justiciable and not merely an arbitrary selection between proposals of intricately minute differences.BACKGROUND The parties commenced a same-sex relationship in 2009. The subject child was born in 2013. He was 10 years of age at the time of trial, and upon publication of these reasons is now 11 years of age. The applicant is the child’s biological mother. The respondent has no biological connection to the child but is designated as his other parent on his birth certificate. Aside from conception, the child’s biological father has played no role in his life. The parties separated in 2017. The child, who was then four years of age, remained in the care of the applicant but spent time regularly with the respondent on alternate weekends.[1] [1] Family Report at [21] In 2018, the applicant voluntarily left the child in the care of the respondent on an intended temporary basis while she tried to arrange stable accommodation, but the respondent retained the child due to her belief the applicant’s then lifestyle was inimical to the child’s proper care. The child has lived with the respondent ever since. The applicant admitted she was “spiralling out of control” at that point in time.[2] The applicant tried to recover the child by taking him from school in 2019, but that only resulted in criminal charges and a family violence application being brought against her in a State court.[3] The family violence order was made against the applicant for the protection of both the respondent and the child, though it has long since expired.[2] Family Report at [22] and [48][3] Family Report at [32]–[34]; Exhibit R5 Proceedings were first initiated by the applicant under Pt VII of the Act shortly after the incident at the child’s school in 2019, which proceedings were resolved at a hearing held in her absence in December 2019. Orders were then made for the child to live with the respondent and for her to have sole parental responsibility for the child. The orders prescribed the child would neither spend time nor communicate with the applicant, so he has not spent any time with the applicant since then.[4] In fact, the applicant admitted the child has not spent any time with her since 2019.[5][4] Family Report at [99][5] Applicant’s affidavit at [7] The orders made in December 2019 were accompanied by these notations:A. These orders have been made in the applicant mother’s absence.B.If the applicant wishes to seek an order to spend time with the child she may do so but she will need to file an affidavit addressing the issues of her drug use, housing, mental health and aggression/family violence so that the court can properly assess whether it is in [the child’s] best interests for the court to make an order for the child to spend time with the applicant.

Evidence

Evidence Before The Court

The essential issues became these:(a)should the child’s visits with the applicant in the winter school holidays endure for as little as four days or as much as two weeks;(b)should the child’s visits with the applicant in the summer school holidays endure for as little as four days or as much as three weeks;(c)should the child’s graduation to spending unsupervised time with the applicant be conditional upon the applicant providing a negative illicit drug hair follicle test and, if so, whether it is needed only once or on every occasion; and(d)should the applicant be restrained from allowing the child to come into contact with her partner, Mr G.EVIDENCE The applicant relied upon her affidavit filed on 11 October 2024 and the affidavit of Mr G filed on 11 October 2024. The respondent relied upon her affidavit filed on 30 October 2024 and the affidavit of her partner, Ms J, filed on 30 October 2024. The parties and the ICL relied upon the family report dated 5 October 2023. Nobody sought that it be updated before the trial, presumably because the child has had no interaction with the applicant and circumstances were unchanged. As the ambit of the dispute began to swiftly collapse, the respondent and the ICL realised there was no point to be served by cross-examining the family consultant on the residual issues. The applicant still wanted to cross-examine the family consultant, but only in respect of the undesirability of the proposed injunction which would restrain her from allowing the child to have any contact with Mr G, which injunction she opposed. Her request to cross-examine the family consultant on that solitary issue was refused for two reasons. First, the answer to the question of the whether the contested injunction should be made was essentially factual and therefore beyond the remit of the family consultant’s expertise. Secondly, the family consultant was unavailable on the second day of trial and so allowing her submission to cross-examination on that singular issue would have unjustifiably pushed the trial into a third day. The decision to refuse the request to cross-examine the family consultant was empowered generically by the obligation to actively control the proceedings and to ensure finalisation as quickly, inexpensively and efficiently as possible (s 69ZN(4) and s 95), but also more specifically by the discretion to refuse a party’s desire to cross-examine a particular witness (s 69ZX(2)(i)).LEGAL PRINCIPLES Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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