Garwood & Shipton (No 12)
[2024] FedCFamC1F 681
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 12) [2024] FedCFamC1F 681
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – CHILDREN – Where the final hearing of the matter is part-heard – Where the parties have reached agreement to finalise the parenting proceedings – Where there has been non-compliance with interlocutory orders for time spending between the father and the child – Where the Court has an obligation to make orders least likely to lead to the institution of further proceedings in relation to the child – Where the Court has been assured that both parties are committed to complying with the proposed orders – Final parenting orders are made by consent Legislation: Family Law Act 1975 (Cth) s 60CC
Family Law Amendment Act2023 (Cth)
Cases cited: Garwood & Shipton (No 3) [2024] FedCFamC1F 2
Garwood & Shipton (No 11) [2024] FedCFamC1F 623
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 27 September 2024 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: Ms Hume Solicitor for the Respondent: Angela Ferdinandy Pty Ltd ORDERS
ADC 4995 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARWOOD
Applicant
AND: MS SHIPTON
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
27 SEPTEMBER 2024
BY CONSENT IT IS ORDERED:
1.That all parenting orders be and the same are hereby discharged.
2.That the mother shall have sole parental responsibility for X except that she shall:
(a)Consult with the father in respect of medical or specialist treatment provided to X and will provide the father with an opportunity to be involved in any of X's specialist treatments and for X's long term medical decisions.
(b)That the mother shall provide written consent for the father to be informed, and to communicate with any health provider engaged by the mother in respect to X's health.
3.That thereafter and for a period of six (6) weeks (for three occasions) that the parties use the handover service of the Children's Contact Centre for the purpose of effecting handover between them of X for the arrangement set out at paragraph 4 herein.
4.That X shall spend time with the father on either Saturday or Sunday (dependent on the availability of the Contact Centre to facilitate handover) from 10.30am to 3.30pm for a period of six weeks (three occasions).
5.That the parties agree to engage in family therapy at AX Psychology with Ms AY with fortnightly sessions commencing 16 September 2024 for a period of not less than three (3) months NOTING THAT the mother will apply for a Mental Health Care Plan for X to be attributed to the cost of the therapy and that the balance of the cost of therapy, or any amount not met by the said plan, to be paid equally between the parties.
6.That following the three (3) facilitated handovers at the Children's Contact Service and until 3 January 2025 that X spend 5 hours each alternate Saturday from 11.30 am to 4.30 pm and Sunday from 8.30 am to 11.30 am (of the same alternate weekend) with the father with handovers to occur at AZ Business, Adelaide, or such place as agreed between the parties.
7.From 11 January 2025 X is to spend time with the father from 11.00 am on Saturday to 12.00 pm on Sunday.
8.On the weekend commencing 25 January 2025 X is to spend time with the father from 11.00am on Saturday to 12.00 pm on Monday 27 January 2025.
9.From the commencement of the school term in 2025 and commencing on the first weekend of Term 1, X is to spend time with the father:
(a)During term time from 11.00 am on Saturday to 2.00 pm on Sunday each alternate weekend.
(b)During school holidays:
(i)For the Term 1 school holidays in 2025 for the first week of holidays from 11.00am on the first Saturday of the holidays to 2.00 pm on the following Thursday (5 nights) NOTING that the term time arrangement shall recommence on the first weekend of Term.
(ii)For all short-term holidays thereafter for one half of the short-term school holidays from 6.00 pm on the last Friday of term to 4.00 pm the following Saturday.
(iii)For all the long Christmas school holidays on a week/week arrangement as follows:
A.In even numbered years the father's time shall commence at 2.00 pm on the Friday at the end of the first week of holidays to 2.00 pm on the following Friday and each alternate week thereafter.
B.In odd numbered years the father's time shall commence at 6.00 pm on the first Friday of the holidays (NOTING that this may fall on the last day of the school term) to 2.00 pm on the following Friday and each alternate week thereafter with handover at 2.00 pm on Friday for the balance of the holiday period.
10.That for special occasions the care arrangements as referred to herein shall be suspended and X shall spend time with each of the parties as follows:
(a)For Christmas (commencing in 2025) as follows:
(i)In odd years from 3.00 pm on 23 December to 9.30 am on Boxing Day with the father.
(ii)In even years from 3.00 pm on 23 December to 9.30 am on Boxing Day with the mother.
(b)For Mother's Day and Father's Day X shall spend the weekend of Mother's Day with the mother and the weekend of Father's Day in the same pattern as the weekend time arrangements.
11.That all handovers (with the exception of the handovers that are to occur at the Contact Centre pursuant to paragraphs 1 - 3 herein) shall occur at AZ Business, Adelaide or such other place as agreed between the parties in writing.
12.That time spending as provided for in these orders be varied from time to time upon agreement between the parties in writing.
13.That each of the parties be at liberty to:
(a)Attend all school functions, extra-curricular activities, and events, such as sports, dancing etc., that parents would normally otherwise attend.
(b)Receive all information from X's school such as newsletters, school information App's and any other form of communication that parents would normally otherwise receive.
(c)That the mother do all things necessary and sign any document required to authorise X's school to share relevant information with respect to X's education with the father.
14.That the parties will inform each other of their intention to change their residential address and their proposed residential address within twenty-four hours of a definitive decision to relocate and provide the other party with the new address.
15.That the parties inform each other in writing of any changes to their telephone numbers and email addresses as soon as possible but no later than twenty-four hours of such change.
16.That in the event that the mother intends to relocate:
(a)The parties enter into discussion with respect to amending parenting arrangements, given X will no longer be required to travel to and from Town M, with a view to increasing X's time with the father.
(b)In the event agreement is not reached, the parties will engage in a mediation service to mediate issues around the father's time with X as a first step.
17.That the mother do notify the father in writing within 48 hours prior to her decision to inform X how she was conceived and advise the manner in which she intends to convey this to X. Thereafter, the mother shall advise the father in writing with the details of how the information was conveyed to X, and X's response to this information.
18.Pending the decision of the mother to inform X of her biological origins, the parties are restrained, and an injunction granted restraining the parties from informing X how she was conceived or allowing any other person to do so without the written consent of the parties, or until X is 16 years of age, whichever occurs first.
19.In the event that either party seeks to travel with X overseas during their time, in the event the parties do not agree in the first instance, they shall attend a mediation service to discuss whether such travel can be agreed, noting that their consent to overseas travel shall not be unreasonably withheld, taking into account X's age and maturity and their current circumstances, and in the event that overseas travel is agreed:
(a)the travelling party is to notify the non-traveling party in writing of the proposed travel destination and dates of travel by providing fifty-six (56) days' notice.
(b)the travelling party will provide the non-travelling party with a copy of X's itinerary together with the contact details and accommodation details for X when they are away at least forty-two (42) days prior to departure.
(c)Where the itinerary provided to the non-travelling party changes, the travelling party shall inform the non-traveling party of the change, including but not limited to flights, accommodation and contact details once the change has been confirmed.
(d)The parties shall do all things necessary and sign all such documentation which may be required to obtain an Australian passport for X, at the expense of the travelling party, with X's passport to be retained by the FCFCOA Registry in Adelaide and, upon consent by the non-travelling party, be provided to the travelling party when they intend to travel with X.
20.That each of the parties be restrained and an injunction granted restraining them from:
(a)Criticising, abusing, harassing, insulting, or denigrating the other parent or family members of the other parent in the presence or within ear shot of X, or allowing any other person to do so.
(b)Discussing these proceedings or the contents of any document filed in or intended for use in these proceedings with X or in the presence of or within ear shot of X or from allowing any other person to do so.
21.That the parties will inform each other of any significant illness or injury suffered by X and of any medical or dental treatment required by X as soon as reasonably practicable by way of SMS text message and/or email save and except in the event of an emergency and/or admission of X to hospital whereby the other party is to be notified immediately by way of a telephone call.
22.That the parenting proceedings otherwise be dismissed as finalised.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garwood & Shipton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These proceedings come before me today in relation to the parties' child, X, born in 2018.
The proceedings have a very lengthy history before the Court, and I do not propose to traverse all of those matters in these oral reasons today. I have delivered a number of judgments in these proceedings, including a judgment in relation to a cost orders made a week ago. Nonetheless, over successive judgments, I have set out with some detail the history of the litigation and the circumstances of the parties and how they find themselves before this Court.
In short, for today's purposes, the proceedings are part heard before the Court with respect to both the threshold question of whether the parties were in a de facto relationship together with parenting proceedings in relation to the child X.
The trial commenced and was heard across late 2022, and despite repeated attempts to conclude the trial, it has yet to conclude. Hearing dates are set aside in a couple of weeks for a period of three weeks, to conclude the trial.
In the meantime, the parties, as I understand it, have been engaged in negotiations with the assistance of their legal representatives, and, at various times, they have undertaken formal mediation with the assistance of a qualified mediator. As a result of those negotiations, the Court, today, has before it, at the joint request of the parties, a minute of order to resolve all parenting applications before the Court.
BACKGROUND
It is necessary for me to set out a very short summary in relation to the parenting proceedings.
On 11 January 2023, I delivered lengthy reasons and made interlocutory parenting orders in these proceedings (Garwood & Shipton (No 3) [2024] FedCFamC1F 2). In those reasons I set out a summary of the history of the proceedings. The parenting orders made that day were at a point in time when the Court had adjourned the first tranche of the final hearing, and the Court heard and determined an Application in a Proceeding filed by the father on 21 November 2022 in relation to his time spending with the child X. I mention those reasons because they set out what has been a very difficult history in terms of the father establishing and maintaining a relationship with the child X, and I have had regard to those matters.
I also mention those reasons as the Court is a little hamstrung in the information it has before it since the making of those orders. This is because the proceedings are part heard, and the parties have yet to file updating material for the resumption of trial. However, as I understand it, since the making of those orders for time spending between the father and X in January 2023, there was a period of time where those orders were the subject of compliance. At some point, however, across 2023, but certainly subsisting for the majority of 2024, the orders made in January 2023 have not been the subject of compliance, and as I understand it, there has been very little meaningful time spending between the father and X for some very significant time now.
DISCUSSION
The parties today present the Court with an order that they invite the Court to make which would see X recommence time spending with the father. Handover for that time is to be facilitated for a period of three visits on alternate weekends through a contact service, but thereafter, the time is to gradually increase such that there is what can best be described as a more regularised time spending arrangement which would see X spending time with the father on alternate weekends, including overnight time spending, together with extended blocks of time during the school holidays which, ultimately, will result in half of the school holidays, both in the short school holidays and on a week-about basis in the longer school holidays. The parties have also been able to broker arrangements for special occasions and X's time spending with the parties at those times.
The proposed orders provide for the mother to have sole parental responsibility for X, but that she consult with the father in relation to a range of matters in the exercise of her parental responsibility, including medical or specialist treatment. The father is otherwise to obtain information in relation to X from a range of sources including, but not limited to, her school and other professionals. The father is also at liberty, as is the mother, to attend all of the functions and extracurricular activities that a parent would ordinarily attend. The proposed orders provide for the parties to keep each other informed about their residential addresses. This is something that is of some significance, because earlier in these proceedings, prior to the commencement of the final hearing, it is the father's case that the mother unilaterally relocated the child's residence to Town M, without his consent.
One of the orders sought in the parenting proceedings was an order that the child be relocated to return to live in Adelaide. I understand as a result of costs applications that this Court has determined, including the reasons I delivered and orders made last week (Garwood & Shipton (No 11) [2024] FedCFamC1F 623), that there have been a number of changes, particularly to the mother's financial circumstances, since the first tranche of the trial concluded. Those changes include an administration and, ultimately, a sale of the mother's businesses. In addition, the mother has indicated to the Court that the home that she presently lives in Town M with X and her other children is likely to be sold, and she will need to rehouse herself.
I mention those matters because the orders provide for the parties to enter into some further negotiations if, indeed, the mother was to relocate back to Adelaide with X, such that the father's time spending with X might be the subject of agreement as and by way of an increase to the arrangements provided for in the proposed orders.
The other issue that the parties have canvassed and agreed to by these proposed orders is a regime for the parties to adhere to if, at some point in the future, the mother determines that it is appropriate to inform X about the circumstances of her conception. The parties, to their credit, have sensitively considered that topic and how that information might ultimately be conveyed to X, with the mother to involve the father by advising him if she intends to convey that information to her.
The proposed orders also provide for both parties to be at liberty to travel with X on certain terms and conditions. There are also injunctions which are of a more common nature in parenting proceedings, restraining both parties from discussing the proceedings or documents filed in the proceedings with or in the presence of X, together with injunctions restraining the parties from criticising, abusing, harassing, insulting or denigrating the other parent or other family members in the presence of X or within earshot of her, or permitting anyone else to do so.
Having had regard to the proposed orders that the parties have agreed to, there is no doubt in my mind that the proposed orders are comprehensive and that the parties have considered a broad range of matters that will affect X moving forward, not just her regular time-spending arrangements, but other matters which are likely to impact X as she matures.
I, however, have some reservation in making the proposed orders. I have reservation because I am told that there has not been time spending for a very significant period of time, and these proposed orders provide for an immediate resumption of time. I am also conscious, as a result of the information that is before the Court from a range of sources, that one of the difficulties to date has been X's ability to separate from the mother so that time spending with the father can occur. I do not propose to comment as to whether the Court at this stage has any views as to why those difficulties exist. I am cognisant that I am part heard in the final hearing, and, ultimately, as a result of the proposed orders the parties are asking the Court to make, I am not being asked to make any findings in relation to those matters.
Whatever the case may be and whatever problems might have prevailed until today, the parties are now jointly inviting the Court to make orders for a regime of time spending between X and the father. While I have some reservation that the parties are acting in blind faith or hope that these proposed orders will be the subject of compliance, it is not lost on me that these parties are both ably represented by experienced family law solicitors and counsel, and that throughout these proceedings, the parties have had the benefit of legal advice. Indeed, the proposed orders that the parties ask the Court to make are the product of lengthy negotiations and various mediation attempts.
That the parties are both legally represented, and that they both invite the Court to make these orders, is a matter that has weighed heavily in my consideration of whether these orders are indeed in X's best interests.
Turning to those factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), I am conscious that the trial in these proceedings commenced before the recent amendments to the Act (Family Law Amendment Act2023 (Cth)), and in those circumstances, the old provisions prevail so far as the s 60CC factors that the Court is to have consideration to, namely the primary and the additional considerations set out at s 60CC(2) and s 60CC(3) as it then was.
I do not propose to detail all of the considerations canvassed in s 60CC but one of the things that is weighing heavily on my mind today is the Court's obligation to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.
That is a matter that troubles me significantly because it is not lost on me that I made orders over a year ago for the father's time spending and they have not been the subject of compliance. It is also not lost on me that in circumstances where there has not been time spending between the father and X for some significant time, there is a very real possibility that the orders that the parties are inviting the Court to make may well not be complied with and that there may be further litigation.
Such an outcome, on any view, given the lengthy history of these proceedings, would not be in X's best interests. Having raised that matter with counsel for each of the parties, the Court has been assured that both parties are committed to these orders and that both parties have some confidence that they will be able to comply with these orders and support X in that regard.
The proposed orders also provide for a process of therapy. While not described in this way by the parties in the proposed orders, I am told during the course submissions that this therapy is intended to take the form of reunification therapy.
That being said however, the orders for time spending are not conditional on the success or otherwise of that so called reunification therapy, and the parties understand that regardless of what occurs in that therapy, the orders for the father's time spending with X are to prevail and time spending is to take place.
So far as the primary considerations are concerned, the proposed orders provide for X to have a meaningful relationship with both of her parents.
So far as protecting X from physical or psychological harm, implicit in the parties coming to the agreement that they have is that neither of them suggests that the other of them presents a risk of harm to X. If that were the case, the father would not have consented to orders that provide for X to live with the mother, but equally, the mother would not have consented to orders for regular time spending between the father and X.
At this juncture, X has been too young to date to express her views. Indeed, prior to the resumption of the trial, one of the things that the parties were turning their mind to and the Court may well have had to determine was what further information and evidence the Court was to have with respect to X's current level of functioning, her needs and her views.
I am cognisant that the parties are embarking on a process to have X assessed for Autism Spectrum Disorder as a result of a range of her presentation concerns. They are not concerns that are new; they have been long held by the mother and, indeed, there is a swathe of evidence already before the Court about those matters.
These proceedings have not been without their difficulty. That the parties have been able to broker a negotiated outcome in relation to the parenting proceedings is a very significant factor in my consideration that these proposed orders are indeed in X's best interests.
Bringing an end to what can only be described as costly and acrimonious litigation, on any view, is in X's best interests, and the parties are to be congratulated for coming to this point despite the significant costs they have expended and the significant level of acrimony that has existed throughout the course of the litigation.
It is for all of those reasons that I have come to the considered view that the orders that the Court is now invited to make in relation to X are indeed in X's best interests.
EXTANT ISSUES
So far as the de facto threshold issues are concerned, I am advised today that those proceedings are to be discontinued. I do not propose to do anything in that regard, because that circumstance is subject to a number of other things and orders being made, and the parties wish to craft those orders carefully. That aspect of the proceedings will therefore be adjourned to enable those matters to be attended to.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 16 October 2024
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