Garwood & Shipton (No 3)
[2023] FedCFamC1F 2
Federal Circuit and Family Court of Australia
(DIVISION 1)
Garwood & Shipton (No 3) [2023] FedCFamC1F 2
File number(s): ADC 4995 of 2018 Judgment of: KARI J Date of judgment: 11 January 2023 Catchwords: FAMILY LAW – PARENTING – Interim application – Where the trial is part heard – Where the father filed an Application in a Proceeding seeking to implement a gradual time spending regime – Where the mother’s primary position is that she opposes any regular time spending – Where the mother’s alternative position is that there should be re-unification therapy – Consideration of whether there should be any time spending arrangements between the child and the father pending the resumption of trial in April 2023 and likely up until the delivery of judgment – Consideration of whether the Court obtains an expert report prior to any determination of the time spending arrangements – Orders Legislation: Family Law Act1975 (Cth) Cases cited: Garwood & Shipton (No 2) [2022] FedCFamC1F 723
Goode & Goode (2006) FLC 93-286
Hall and Hall (1979) FLC 90-713
Division: Division 1 First Instance Number of paragraphs: 92 Date of hearing: 13 December 2022 Place: Adelaide Counsel for the Applicant: Ms. O’Conner SC Solicitor for the Applicant: Stanley & Co. Lawyers Counsel for the Respondent: Ms. Tinning Solicitor for the Respondent: Barnes Brinsley Shaw Lawyers 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:
11 January 2023
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.X (born in 2018), spend time with the father in Adelaide on one occasion each week between 11.00 am and 2.00 pm (preferably on the same day each week).
2.All handovers at the commencement and conclusion of the father’s time, be facilitated as follows:-
(a)that Ms U be present and facilitate all handovers at the commencement and conclusion of time for a period of time not exceeding 30 minutes;
(b)that the mother nominate and facilitate either Ms BB or Ms CC to attend and facilitate all handovers together with Ms U; and
(c)that all handovers occur at either a playground and/or park and/or such C Company location or such other location (not to include Ms U’s office or any other clinical setting) as agreed between the parties and Ms U in writing.
3.The mother be restrained and an injunction is granted restraining the mother from attending within a 5km radius of the handover location.
4.Each of the parents be restrained and an injunction is granted restraining each of the parents from video/audio recording the handovers and/or occasions of time spending and/or permitting or authorising anyone else to do so.
5.That forthwith the mother provide a copy of these Orders to each Ms BB and Ms CC.
6.That forthwith the parties jointly instruct Ms U to facilitate time spending in accordance with these Orders, and in relation to the same:-
(a)Ms U is to be given a copy of these Orders and reasons;
(b)Ms U is requested to commence facilitating such time spending as soon as she is available to do so, and preferably within 7 days of these Orders;
(c)Ms U is requested to prepare a report at the conclusion of the sixth visit; and
(d)the mother shall meet the costs of Ms U.
7.The mother file and serve a copy of Ms U’s report as soon as it is available.
8.That save and except those matters referred to in paragraph 17 of these reasons, the father’s Application in a Proceedings filed 16 November 2022 and the mother’s Response filed 22 November 2022 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
Introduction
These proceedings relate to the parenting arrangements for the child X born in 2018 (“X”), who is 4 years of age.
X has always lived with the mother.
X has not had a meaningful relationship with the father to date.
The parties competing applications for final parenting orders are diametrically opposed. They are each asking the Court to make an order that X live with them and that they have sole parental responsibility.
If the mother is successful in her application that X live with her and that she have sole parental responsibility, she thereafter promotes a range of orders involving various professionals, all aimed at facilitating a relationship between X and the father at some point in the future. That future date appears to be approximately two to three years away, when the mother proposes that there be “unification therapy” between the father and X.
If the father is successful in his application that X live with him and that he have sole parental responsibility, he thereafter proposes that there be no time spending between the mother and X for a period of eight weeks. After that, he promotes a gradual re-introduction of time spending between X and the mother, initially on a supervised basis and then building over time to unsupervised time spending on alternate weekends as and from 2024.
The final hearing in the proceedings is part heard. The trial commenced before me on 5 September 2022 and was listed for 12 sitting days. However, for reasons which are not germane to the present dispute, the trial hearing has become significantly protracted and elongated. The trial is scheduled to resume on 17 April 2023, with a further 15 sitting days allocated.
The issues to be determined as part of the trial process are not only the parenting arrangements for X, but also determination of the threshold question of whether the parents were in a de facto relationship, as the father claims, or not, as the mother claims.
The parties have each filed lengthy trial affidavits and they each intend to call a number of witnesses during the trial.
On the mother’s part, those witnesses are:-
(a)Ms DD, who is a contractor engaged by the mother;
(b)Ms EE, who is an employee of the mother;
(c)Ms FF, who has become a friend of the mother;
(d)Ms CC, who is the mother’s sister; and
(e)Ms BB, who is a private employee of the mother.
On the father’s part, those witnesses are:-
(a)Mr GG, who is the paternal grandfather;
(b)Mr JJ, who is an acquaintance of the father;
(c)Ms HH, who is the paternal grandmother;
(d)Mr KK, who is in a relationship with the paternal grandmother; and
(e)Ms LL, who is the father’s cousin.
In addition, at this stage there are a number of expert witnesses, including:-
(a)Ms B, a Clinical Psychologist who has prepared two family reports in the proceedings dated 13 November 2019 and 19 August 2022, respectively;
(b)Ms J, a Social Worker who describes herself as a ‘Child & Family Consultant and Therapist’ who was appointed to supervise the father’s time spending with X pursuant to Orders made 29 July 2020. Ms J has produced two reports dated 23 September 2020 and 13 November 2020; and
(c)Ms G, a Clinical Psychologist, who was appointed pursuant to Orders made 7 November 2020, to provide therapy to X and has produced several reports dated 12 December 2021, 22 July 2022 and 6 May 2022.
While not specifically referred to in these reasons, I have had regard to all of the material that has been filed for the purposes of trial, together with the material filed by each of the parties in support of their present competing interlocutory applications.
At this stage of the trial, the mother is the only witness that has given oral evidence.
In circumstances where the trial is part heard, and I am yet to hear from all of the witnesses, and because the proceedings have had a significant history before coming into my docket for trial purposes, it is both difficult and unwise for me to form any concluded views about a range of matters. I have however, attempted to understand as much as possible about the matter from the evidence before the Court for trial (including the expert reports), and with reference to the Orders that have been made throughout the proceedings.
The interlocutory issues that now fall for determination, are the time spending arrangements between X and the father pending the resumption of trial in April 2023 and likely up until the delivery of judgment. The issues in dispute can broadly be identified as:-
(a)Time spending and communication between X and the father, and the terms and conditions around any such time spending;
(b)Whether the Court obtain an expert report prior to any determination of the time spending arrangements between X and the father; and
(c)Whether there be reunification therapy between X and the father.
The mother otherwise promotes a range of additional orders focussed towards the resumption of the trial, including:-
(a)The information and the Court documents to be provided to the family report writer Ms B.
(b)The information to be provided to an Occupational Therapist to be engaged for X, and the extent to which that Occupational Therapist engages with the experts in these proceedings, which includes treating practitioners.
These latter issues were not traversed during the interim hearing and will need to be heard and determined separately.
Background
For ease, I repeat matters that I set out when I delivered reasons in these proceedings on 26 September 2022 in Garwood & Shipton (No 2) [2022] FedCFamC1F 723.
9. The parties to the proceedings are:
(a)[THE FATHER], born in 1974, who is 48 years of age; and
(b)[THE MOTHER], born in 1969, who is 53 years of age.
10.The child who is the subject of the proceedings is [X]. She was born in 2018, and she is 4 years of age.
11.The parties agree that [X] was born as a result of an artificial conception procedure, undertaken in [Country AA] in 2017.
12.There is no dispute that for the purposes of the procedure resulting in [X]’s birth, donor eggs were used together with [the father]’s genetic material.
13.While there is no dispute that [Mr Garwood] is [X]’s father, there is a genuine dispute as to [X]’s parenting arrangements in circumstances where the father has had a very limited relationship with [X] since her birth.
14.In addition, the parties vehemently disagree as to the circumstances of their relationship leading up to [X]’s conception. [Mr Garwood] asserts that the parties were in a de facto relationship. [Ms Shipton] asserts that the parties were never in a de facto relationship, and that the relationship can best be characterised as one of girlfriend and boyfriend (despite her dislike for the use of those terms).
15.The relationship between the parties is further complicated, because [Mr Garwood] was until shortly after the parties separation, manager of [Ms Shipton]’s business.
In addition, for present purposes it is relevant to record that both of the parents have children from previous relationships.
The mother has three sons, who are X’s non-biological siblings:
(a)MM, born 2011 (aged 11) whose father is deceased. He lives with the mother;
(b)Mr OO, an adult, born 1993; and
(c)Mr NN, an adult, born 1996.
The father has two children, who are X’s biological half siblings:
(a)PP, born 2006 (aged 16); and
(b)QQ, born 2008 (aged 14).
X’s living and time spending arrangements
X has always lived with the mother.
While there is a dispute between the parents as to whether they were in a de facto relationship, even on the father’s case, that relationship had come to an end prior to X’s birth in 2018.
For some months following X’s birth, the parties were able to implement some arrangements for X to spend time with the father, largely in the presence of the mother. How those arrangements came to be implemented is the subject of dispute. To date, the Court has heard the mother’s oral evidence only on those topics.
It is however uncontroversial that in late 2018, the maternal aunt, Ms CC, sent the father a text message indicating that the mother was “…unable to accommodate your visit with [X] tomorrow. I took her to the doctors today and on doctors orders she needs two weeks complete rest and free from stress. …”.[1]
[1] Father’s trial affidavit files 19 April 2022, paragraph 95.
Soon after receiving that communication, the father commenced these proceedings by way of Initiating Application filed 30 November 2018 in the Federal Circuit Court of Australia (as it was then known).
The father asserts that he commenced the proceedings because he was concerned for the mother and X as he had been unable to communicate with the mother or find out any information from the mother or Ms CC following his receipt of the text message in late 2018.
After the commencement of the proceedings and with the assistance of their legal representatives, the parties were able to agree a single occasion of time spending between the father and X. This visit took place in December 2018 at a park and it was supervised by the mother. The paternal grandmother was present at that visit, as were X’s siblings QQ and PP.
Thereafter and in the context of what has become protracted litigation, it is fair to say that the arrangements for time spending between X and the father have been fraught with difficulty. The largely unsuccessful attempts at establishing a regular time spending routine between X and the father have included:-
(a)Time spending at a supervised contact service, first ordered by the Court on 11 February 2019 which did not occur, and was re-ordered on 29 April 2019, with two attempts in each July 2019 and August 2019 being unsuccessful;
(b)Supervised time spending in the home of the paternal grandfather pursuant to Orders made 12 August 2019, which was problematic and largely unsuccessful. These sessions are also marred with controversy with each parent alleging the other either contributed to, or was the reason for, the unsuccessful visits. Both parents have video recorded these sessions;
(c)Supervised time spending at one of the mother’s business premises, supervised by Ms CC, pursuant to Orders made 21 November 2019, which did occur but ultimately did not continue as a result of concerns raised by Ms CC as to the father video recording those sessions without her consent;
(d)Supervised time spending by a Social Worker, Ms J first ordered on 29 July 2020, which was entirely unsuccessful; and
(e)Communication via virtual means, which was first ordered on 7 April 2020 and is ongoing, but has been largely unsuccessful.
The father asserts that the mother is the cause of his difficulties establishing a meaningful relationship and regular time spending with X. Among other things, he asserts that the mother’s reluctance to facilitate a relationship between he and X is because she now asserts that he was simply a sperm donor. In further support of this contention, the father points to the mother’s Response for Final Orders filed on 6 February 2019, where she sought orders for sole parental responsibility, that X live with her and that the father only ever spend supervised time with X “not more than once per month for a period not exceeding two hours per visit”. In addition, the father further points to the mother’s Amended Response for Final Orders filed 26 April 2019, where she sought an order that X “spend no time” with the father.
The mother denies any allegation that she is the cause of the stagnated relationship between the father and X. Instead, the mother asserts that X suffers from significant separation difficulties which have prevented her from engaging in time spending with the father.
To that end, and again in the context of the protracted litigation, a range of orders have been made to engage professionals to assist X in separating from the mother and engaging with the father. While not entirely clear, it seems that these orders had their genesis in recommendations made by Ms B in her first Family Assessment Report dated 13 November 2019.
The series of orders that have been made, were those on 21 November 2019 and 17 November 2020, and in that regard:-
(a)On 21 November 2019, Orders were made in the following terms:-
10.The parties jointly engage with [Dr R], or such other infant psychiatrist as they may agree to provide a [sic] assessment of [X] including any apparent separation distress or anxiety she may experience to assist the parties to better manage handover and to facilitate [X] developing a relationship with the father.
11.Both parties are to attend the assessment with the psychiatrist and participate in any proposed treatment or intervention as may be directed by the psychiatrist noting the parties are not required to attend together for appointments.
12.The mother do all things necessary to engage in therapy with either [Ms G] or [Ms L] in relation to [X’s] separation anxiety and any anxiety the mother experiences in relation to [X’s] time with, and her relationship with, the father.
(b)While unclear as to the reasons why, it does not appear that the parties instructed Dr R in accordance with Orders made on 21 November 2019.
(c)On 17 November 2020, further Orders were made directed to X receiving therapy in the following terms:-
4.The parties jointly instruct a psychologist suitably qualified to engage with a child of [X’s] age and assist with her apparent separation distress and/or anxiety as recommended by [Ms B] in her family assessment report and to address the following concerns identified by [Ms J] in her recent report:
(a)[X’s] attachment, mental health, development and therapeutic needs ideally from a trauma and attachment informed framework;
(b)to assist [X] to develop a sufficient sense of security with someone outside of her circle of security in order to maximise the success of the instigation of supervised time spending periods with the father;
(c)in the event the psychologist determines [X] has experienced trauma, in relation to premature separations from the mother, [X] engage in trauma processing therapy to process the trauma related to these experiences, prior to commencing supervised time with the father.
5.The parties ensure that [X] engages in approximately six month therapy intervention, if possible, at weekly intervals, followed by a therapy review at the conclusion of six months, to determine whether [X] is ready to commence spending supervised time spending periods with the father.
6.The parties reach agreement as to the identity of the psychologist within 21 days
(d)It appears that ultimately, the parties agreed to engage Clinical Psychologist, Ms G, to provide therapy for X.
(e)Ms G is a scheduled witness in the trial. She has prepared a number of reports relating to her therapy sessions with X. She continues to provide therapy to X.
Time spending orders made during the course of the trial
Against this significant background, during the course of the first tranche of the trial and while giving her oral evidence, the mother indicated a preparedness to facilitate a period of time spending between the father and X.
That concession by the mother, resulted in the Court making Orders for time spending on 16 September 2022, in the following terms:-
1.That the Father spend time with [X] from 12noon until 2.00pm on 17 September 2022 and in relation to the same:
a. Such time is to occur at the [C Company location];
b.[Ms BB] shall facilitate the commencement and the conclusion of such time spending and that it be at her discretion whether she be present with [X] and the Father during such time;
c.That the Father be permitted to attend such time spending with the child with his daughter [PP].
2.That the Father be restrained and an injunction is granted restraining the Father from video or audio recording such time spending.
3.That the Mother be restrained and an injunction is granted restraining the Mother from either personally or by authorising any other person to do so on her behalf from video or audio recording such time spending.
4.That the Mother be restrained and an injunction is granted restraining the Mother from attending the [C Company location] between 11.30am and 2.30pm on 17 September 2022.
5.That no later than 7.00pm this day the Mother do email the Father setting out information relating to [X] including but not limited to details in relation to:
a. Any food, drink and/or snacks that she likes to eat or drink;
b. Any food, drink and/or snacks that she does not tolerate;
c. Any books she likes to read; and
d. Any activities she enjoys.
6.That prior to the time spending provided in these orders the Mother shall show and discuss with [X] the photographs produced at exhibit F40 and F41.
7.That the Mother’s legal representatives provide [Ms BB] with a copy of the orders made today and that they otherwise be given leave to explain to [Ms BB] that the court has an expectation that she shall facilitate time spending.
8.That the Mother be permitted to discuss with [Ms BB] the time spending that occurs pursuant to these orders with any such discussion to occur in the absence of [X] and to that extent only the Mother be given leave to have those discussions with [Ms BB].
As best as the Court can ascertain, that period of time spending took place and was largely positive and without significant incident.
When the first tranche of the trial concluded on 20 September 2022, the father made an oral application for ongoing time spending between he and X pending the resumption of the trial in April 2023.
It must be said that there was some level of optimism on my part that the parties would be able to reach an agreement as to time spending pending the resumption of the trial, particularly given the time spending that had occurred on 17 September 2022 and the mother’s apparent willingness to facilitate time spending stated during her oral evidence.
Unfortunately, that optimism proved to be misguided.
While the parties were able to negotiate time spending on two further occasions being on 6 October 2022 (facilitated by Ms BB) and 13 November 2022 (facilitated by Ms CC), they have been unable to agree a regime of ongoing time spending without recourse to the Court.
The father ultimately filed an Application in a Proceeding on 16 November 2022 and the mother filed a Response thereto on 22 November 2022.
If nothing else, the parties’ inability to reach agreement about time spending arrangements intended to only cover a short term period, is indicative of the entrenched conflict and deep mistrust between them.
The proposals of the parties for interim time spending
The parties proposed orders are set out in their competing applications; the father’s Application in a Proceeding filed 16 November 2022 and the mother’s Response filed 22 November 2022.
The father’s application for interim time spending
The father’s position is that he would like to continue to build on his relationship with X and for there to be a regime of time spending implemented. He says that this is appropriate given X’s recently demonstrated ability to separate from each Ms BB and Ms CC and spend time with him.
The orders sought by the father can be summarised as follows:-
(a)That X continue to live with the mother.
(b)That X spend time with the father on a graduated and increasing basis:
(i)For a period of four weeks, each Sunday from 10.00 am to 2.00 pm;
(ii)Thereafter, for a period of four weeks each Sunday from 10.00 am to 4.00 pm;
(iii)Thereafter, each Sunday from 10.00 am to 5.00 pm;
(iv)in addition the father wishes to be permitted to travel to M Town for time spending with X on a weekend on both the Saturday and Sunday from 10.00 am to 5.00 pm.
(c)That all handovers take place at RR Park or such other location as agreed, with a person other than the mother.
(d)That the person nominated by the mother to conduct handover, remain in the vicinity of the handover location for 30 minutes to ensure a smooth transition.
(e)That the previous FaceTime communications arrangements between the father and X be replaced with a FaceTime communication on each Tuesday afternoon.
The mother’s application for adjournment
The mother’s primary position is that she opposes any regular regime of time spending being implemented. She says that the Court should not decide the matter, and rather should adjourn any consideration of the father’s application until such time that the Court has the benefit of expert evidence from Ms G as to the impact on X of the competing proposals of the parties.
In the alternative, and in the event that the Court does not accede to the mother’s application for an adjournment, the mother promotes that the parties engage a therapist named Ms U, to undertake ‘reunification therapy’ between the father and X. The mother further proposes that for the purposes of that therapy, either Ms BB or Ms CC facilitate X’s attendance in lieu of the mother and that they remain present at each session for so long as Ms U directs.
The mother’s alternative “fall back” position if the Court does not accede to an adjournment and/or the Court does not order reunification therapy, is that time spending between the father and X occur fortnightly, with the first visit not to exceed two hours, and any visit that takes place not to commence before 11.00 am.
In addition, the mother seeks for the Court to make orders that such time spending effectively be facilitated and/or supervised by a Court Child Expert. However, the Court understands that prior to the interim hearing, the mother’s legal representatives were given advice by the Court Child Expert service, that this is not a resource that the Court is able to provide as envisaged by the mother, and that a contact centre is a more appropriate service.
The mother had promoted the use of a Court Child Expert as she has informed the Court that both Ms BB and Ms CC are not willing to facilitate or supervise the father’s ongoing time spending with X. Both Ms BB and Ms CC however, have advised the mother that they are each prepared to facilitate and/or be involved in any reunification therapy.
The mother’s adjournment application is predicated on the Court accepting that the provision of updated evidence from X’s therapist is necessary and essential to the determination of the present dispute.
I do not however accept this proposition.
This Court is routinely asked to make parenting orders, including those for time spending, in the absence of expert evidence, whether that be from a treating practitioner, Court Child Expert or the single expert tasked with the conducting a Family Assessment and preparing a report.
The quintessential task of any Judge asked to make parenting orders pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”), is to make orders that the Court considers to be in a child’s best interests with regard to those factors set out in s 60CC of the Act. That exercise may, or may not be informed by expert evidence.
Moreover, the comments of the Full Court in Hall and Hall (1979) FLC 90-713 (“Hall”) is that there is “no magic in a Family Report” are equally applicable to any other expert evidence, including that of a treating practitioner. In Hall, the Full Court observed at 78,819 as follows:-
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(Citations omitted)
While I accept that an updated report from Ms G may well have been of assistance to the Court in determining the present dispute, I do not consider the circumstances to be such that the Court should be paralysed from making any orders for time spending pending the provision of any such report.
In addition, I am concerned by the necessary delays that would result from any adjournment to allow the preparation of such a report.
For all of those reasons, the mother’s application to adjourn consideration of the matter pending the receipt of a report from Ms G, is not one that finds favour.
What parenting orders should be made at this juncture?
In circumstances where the Court has refused the mother’s application for an adjournment of the interim dispute, it now falls to me to consider what interim parenting orders for counselling and/or time spending would be in X’s best interests at this stage.
The determination of this question has been delayed in circumstances where the matter was due to be heard on 30 November 2022 however, that hearing was adjourned as a result of circumstances involving X’s sibling MM, being hospitalised.
The Legal Framework
As identified earlier, the Court’s task whenever it is called upon to make a parenting order, is to make orders that are in a child’s best interests.
In determining what is in a child’s best interests, the Court is assisted by s 60CC of the Act, which sets out the considerations (primary and additional) to which the Court is to have regard.
Section 60CC(2) of the Act sets out the primary considerations to which the Court is to give greater weight to, namely:-
(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.
The additional considerations set out in s 60CC(3) of the Act are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
In addition, the Court is to have regard to the objects expressed in s 60B(1) of the Act as well as the underlying principles which underpin the parenting provisions of the legislation set out at s 60B(2) of the Act, which are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In Goode & Goode (2006) FLC 93-286 at [82], the Full Court set out the “legislative pathway” that is to be followed in parenting cases as follows:
a. identifying the competing proposals of the parties;
b. identifying the issues in dispute in the interim hearing;
c. identifying any agreed or uncontested relevant facts;
d.considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e.deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable
i.if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
k.even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
As reflected by the orders pursued by the father, the Court at this interlocutory stage, is not being asked to make orders for parental responsibility in relation to X.
Rather, the focus of the Court is relatively narrow. Put as simply as possible, the question is what time spending should there be, if any, between X and the father at this stage, and should any such time spending be guided by a reunification therapy process and/or be supervised as proposed by the mother.
It is of some significance that the mother herself ultimately promotes a relationship between the father and X. This suggests that despite the allegations that she has made, she considers that the father does not present a risk to X and that he would be able to meet her needs. Rather the issue from the mother’s perspective at this stage is that X has struggled to separate from the mother for the purposes of time spending, and accordingly any approach to time spending should be measured and gradual to take into account X’s needs and development.
The Court understands that the overarching orders the mother pursues on a final basis, is for there to be a reunification therapy process between the father and X with a view to thereafter a time spending regime be implemented.
From the summary earlier given in these reasons, the Court understands that exhaustive attempts have been made throughout the life of the litigation to engage X in time spending with the father.
In the context of the trial hearing, it remains to be seen what, if any, findings the Court is able to make about the circumstances that have led these parents to their current predicament. Those findings may or may not include findings about the conduct of each of the parents. At this stage however, it would be unwise for the Court to speculate and/or be drawn into attempting to determine the multifarious issues and disputes.
What is inescapable however at this juncture, is that despite the difficulties that have plagued the history of the time spending arrangements between the father and X, there has been an ability in September, October and November 2022, for X to successfully separate from not only the mother, but also both Ms BB and Ms CC for the purposes of time spending with the father. This is something that had not been achieved with any level of success prior to the trial commencing and was not envisaged as a possible outcome so soon when the trial commenced.
Moreover, X has also been able to successfully separate from the mother on each day during the duration of the first tranche of the trial. What is significant about this additional period of lengthy separation from the mother, is that the time spending between X and the father in September 2022 occurred in the middle of the first tranche of the trial, and was not overly burdensome on X such that it prevented the time spending occurring.
While the Court is yet to hear any oral evidence from Ms B, the comments that she made in her first report, when X was over a year old, are ones which appear to have some present relevance and resonance. Of particular significance are the matters Ms B set out in her first report at [134-136]:-
134. It was the view of the writer that separation anxiety was a normal developmental process and would be reflective of [X’s] age and developmental capacity. However, from the information provided by CaFHS and the observation sessions it was apparent that [X] displayed significant distress upon separation from [Ms Shipton] and her level of distress appeared abnormal.
135.In considering an aetiology for [X’s] separation distress, it was acknowledged that a parent’s own anxiety can influence their child’s emotions and the writer accepted that [Ms Shipton’s] own anxious feelings (including having to be in [Mr Garwood’s] family home) may have contributed to [X’s] difficulties settling. At the same time, it was noted that children have individual temperaments, and there is extensive research to suggest that there are many children who display a greater sensitivity to the world around them. Infant mental health literature reinforces that these sensitive children can develop secure primary attachment relationships but display significant emotional distress upon separation from their primary carer. Notably, once these parental figures return, children settle quickly. As this pattern of behaviour was similar to the observed interactions between [Ms Shipton] and [X], this raised the possibility that [X’s] difficulties could be reflective of temperamental differences.
136. Given these circumstances, the writer considered that there could be a variety of different reasons for [X’s] emotional distress. Regardless, it was clear that [X] displayed significant separation anxiety from [Ms Shipton] and relied upon her mother to help comfort her. Moreover, it was recognised that [X’s] separation anxieties were impacting upon her capacity to form a relationship with [Mr Garwood].
In light of recent events, I cannot exclude the possibility that as Ms B opined in 2019, one of the factors contributing to X’s separation difficulties was her tender age, and that with the passage of time, the influence of that factor has diminished.
What, if any, other factors continue to presently impact X in separating from the mother and those whom she is familiar with, remains to be determined. However, again, Ms B opined that the mother’s own anxieties may be another contributing factor. The possibility that this was in the past and remains a factor today can also not be ruled out at this stage. Again, it is of some significance to the Court that the mother was willing to facilitate the recent time spending that has occurred, and that her comfort about that process appears to have impacted the successful visits that have occurred.
Having made progress in recent times, it appears to be a retrograde step, for there to either be a cessation of time spending between X and the father, a hiatus of time spending, or the involvement of additional professionals in a structured therapeutic relationship. Noting that there has not been time spending since November 2022, and that the timing of the hearing just prior to the Christmas break, and the delivery of judgment has resulted in a short hiatus in any event.
I am also concerned at the possible introduction of yet another professional to provide therapy to X at this stage.
The Court additionally accepts the submissions made on behalf of the father, that it is apparent from the agreed history of time spending, that the most successful occasions of time spending that have occurred, are ones that have taken place away from any structured, formalised or clinical process that involves professionals and locations that are unfamiliar and unknown to X.
In light of all the matters discussed in these reasons, the Court at this juncture is left with the delicate balancing act between capitalising on the significant progress that has been made in recent times, and implementing an arrangement which is not burdensome for X.
Part of that balancing act necessarily involves implementing an arrangement that the mother herself considers she is able to support and facilitate.
At this stage, it seems apparent that one of the factors that has assisted the mother to feel comfortable with time spending arrangements, and has been of benefit to X, is the participation of each Ms BB and Ms CC. It is not lost on the Court that Ms CC was present for the successful time spending that occurred in November and December 2019, and that both Ms BB and Ms CC have assisted in the time spending that has taken place in September, October and November 2022.
Against that backdrop, it is unfortunate that both Ms BB and Ms CC are only prepared to be involved in facilitating time spending between X and the father under the banner of reunification therapy, and not in any other circumstances. The Court however accepts that each Ms BB and Ms CC are entitled to make their own decision in that regard. Without understanding their respective positions fully, it is impossible to form any conclusion about their decision or to draw any inferences.
During the hearing, the Court enquired of the parents whether Ms U was prepared to be involved in the time spending arrangements as a supervisor as against as a therapist undertaking reunification therapy. The Court understands that this question had not been posed by either of the parties prior to the hearing. However, during the hearing, the Court was advised that the father’s solicitors made an enquiry of Ms U and that Ms U had indicated to them that she was effectively willing to be flexible in the services she provided to this family and the location of those services.
In circumstances where neither Ms BB or Ms CC are willing to independently facilitate handover, and where the mother herself is unable and unwilling to facilitate handover given the broader allegations she has made in the proceedings (including but not limited to being the victim of unlawful sexual intercourse perpetrated by the father), the Court is left with little option but to look to a professional to assist this family. It is with some comfort that the mother herself has proposed Ms U, as it would be safe to assume that in proposing Ms U, the mother feels confident that she is the right person to assist.
While I do not at this stage consider that reunification therapy is necessary, I do consider that in the absence of any other viable alternative, Ms U be utilised as the intermediary for facilitating handover. In addition, and because each Ms BB and Ms CC have advised the mother of their preparedness to be involved if a professional was present, the Court can have some confidence that they would be willing to assist with the time spending arrangements in the presence of Ms U. The court remains hopeful that in due course another option that does not involve Ms U will become viable; whether that be because Ms CC or Ms BB reconsider their position, and/or because some other person known to the mother and X and whom the father feels comfortable with is prepared to assist.
As to the duration of any time spending, I am of the view that there should be regular time spending but that it should be at a pace that is not taxing on X, particularly as she will be required to travel between M Town and Adelaide for the purposes of time spending.
Given the mother’s anxieties at this stage, and the possible impact this might have on her willingness to support time spending between X and the father, I do not consider time spending in M Town to be viable at this interim stage. In addition, I consider it to be overly burdensome on Ms U to require her to travel to M Town weekly to facilitate handovers, and this factor alone mitigates against this outcome at this stage.
I also consider it appropriate for the mother to meet the costs of Ms U’s participation. When regard is had to the mother’s Financial Statement filed on 2 September 2022, I consider this to be appropriate given the mother holds significant assets, including the business which she has indicated has an estimated value of $13 million, and from which she draws an income. In addition, the mother appears to continue to have deposited the sum of over $550,000 in her previous solicitors’ trust account, despite the fact that she has fully paid their outstanding fees in excess of $260,000. In addition, I note that the mother appears to have spent significant sums on legal fees (almost $800,000 paid as at the date of the hearing of this application) and appears to be able to continue to fund legal and associated expenses from her own resources.
Finally, I consider it appropriate to make an injunction in similar terms to that which was made for the purposes of the time spending that occurred in September 2022 regarding the parties’ video or audio recording of handovers or the father’s time with X. I consider this necessary given my understanding of the evidence in the final hearing that these parties appear to have a desire to record and gather “evidence” for the purposes of the proceedings. In my view, given X’s age and the fact that she would be cognisant of any recordings, I consider any recordings of handover and/or the father’s time with X to be invasive, divisive and unnecessary.
It is for all of these reasons that I make the orders that appear at the commencement of these reasons.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 9 January 2023