GRIGG & FRANKLIN
[2018] FCCA 1098
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRIGG & FRANKLIN | [2018] FCCA 1098 |
| Catchwords: FAMILY LAW – Interim parenting arrangements for child aged 5 years and seven months – parties separated for significant period of time – previous care arrangements regulated by parenting plan – father withholds child as a consequence of allegations of parental deficits of the mother and change of living arrangements – mother seeks to change agreed place of child’s schooling – poor level of communication between the parties – assessment of risk – nature of interim hearing – consideration of section 60CC factors – best interests. |
| Legislation: Family Law Act 1975, ss.4, 60CC, 64B, 65DAA, 65DAC |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 Slater & Light [2013] FamCAFC 4 MRR & GR (2010) 240 CLR 461 |
| Applicant: | MR GRIGG |
| Respondent: | MS FRANKLIN |
| File Number: | ADC 1093 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Subramanian |
| Solicitors for the Applicant: | PZS Legal |
| Counsel for the Respondent: | Mr Hemsley |
| Solicitors for the Respondent: | Legal Services Commission Elizabeth |
ORDERS
Until further or other order:
The child [X] born 2012 (hereinafter referred to as the child) live with the mother.
The child spend time with the father as follows:
(i)From after school (or 3:00pm) on Friday until 7:00pm the following Sunday on each alternate week commencing on Friday, 4 May 2018.
(ii)From after school on Wednesday (or 3:00pm) until 7:00pm on each alternate Wednesday commencing on Wednesday, 16 May 2018.
(iii)During the July school holidays as agreed between the parties and failing agreement the first week of the July school holidays from after school (or 3:00pm) on 6 July until 5:00pm on Saturday 14 July 2018.
(iv)During the October school holidays as agreed between the parties and failing agreement the first week of the October school holidays from after school (or 3:00pm) on 28 September until 5:00pm on Saturday, 6 October 2018.
(v)In the event that Mother’s Day falls on a weekend when the child is in the care of the father the child will spend from 9:00am until 6:00pm with the mother on Mother’s Day.
(vi)In the event that Father’s Day falls on a weekend when the child is in the care of the mother the child will spend from 9:00am until 6:00pm with the father on Father’s Day.
(vii)On the child’s birthday so that the child spends at least three hours on her birthday with the parent who is not providing a residence for her on the occasion of her birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm.
(viii)At such other times as the parties agree.
The parties be restrained and an injunction issue restraining them from changing the child’s school from School A without the written consent of the other.
During the period of adjournment the mother participate in one (1) random urine drug screen tests within twenty-four (24) hours of being requested by the father’s lawyer to submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 with a copy of the results of such tests to be provided to the father’s lawyer as soon as it becomes available.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so or from discussing these proceedings in the presence or hearing of the child or permitting any other person to do so.
Wherever possible the child be exchanged between the parties at his school and when school is not available at such location or locations as agreed between the parties from time to time.
The parties exchange a communication book between them at each handover setting out in writing details relating to the child’s education and school regime, nutritional needs, sleeping patterns, health including details of any medical appointments attended or scheduled and mediation prescribed together with any other matters relating to the child’s care, which it likely to be helpful for the other parent to be aware of.
Should a medical emergency arise in relation to the said child whilst the said child is in the care of either of her parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and an address of any treating medical practitioner and hospital attended by the child and the location of the child.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 17 August 2018.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b) observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties’ forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This matter be listed for final hearing before Judge Brown on 1 & 2 April 2019 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Further consideration of this matter is adjourned to 25 October 2018 at 930am for trial directions and following release of the family report.
IT IS NOTED that publication of this judgment under the pseudonym Grigg & Franklin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1093 of 2018
| MR GRIGG |
Applicant
And
| MS FRANKLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim proceedings relating to parenting arrangements for one child – [X] born 2012. The parties to the proceedings are [X]’s father – Mr Grigg; and his mother – Ms Franklin.
There is no dispute that the parties began a de facto relationship in 2011 and finally separated in November of 2014. Accordingly, they separated when [X] was just over two years of age. He is now about five and a half years old and has just begun his first year of primary school.
Which school he should attend is but one of many controversies between the parties. Currently [X] is attending School A,[1] which is near to where the father lives. It is a fee paying school. The mother lives further away, with her mother, at Suburb D.
[1] Hereinafter referred to as School A
The father is employed as a (occupation omitted) at (employer omitted). It is his evidence that he has flexible hours. The mother is engaged in home duties and receives social security support. It is her position that she will have difficulty in meeting private school fees in future and, given the distance involved, getting [X] to school in Suburb E.
In general terms, the following issues are in dispute between the parties, which are required to be resolved, on an interim basis, pending a more thorough hearing and the provision of more detailed evidence, particularly in the form of an independent assessment of the family:
·Which school [X] should attend;
·Should he be parented in an equal time regime; or
·Should he live mainly with his mother and spend regular defined periods of time with his father on alternate weekends, school holidays and on occasions during the school week.
These various controversies must be resolved in the context of the parties’ parenting relationship having recently seriously deteriorated to a marked degree. This has coincided with the mother moving her home further away from the Suburb E area.
From the father’s perspective, this move is demonstrative of a marked lack of stability in the mother’s life and is reflective of the fact that she has embarked on a dangerous and inappropriate relationship, marked by illicit drug use, which poses a threat to [X]’s welfare.
From the mother’s perspective, the move was justified and safe, as she has moved in with her own mother, in Suburb D. It is her evidence that she has ended the relationship in question and any drug use, on her part, was transitory and experimental.
Prior to the mother’s move, the parties had a reasonably workable parenting relationship. In this context, it is agreed that [X] has lived primarily with his mother and spend regular periods of time with his father. In these circumstances, it is the mother’s case that it would be emotionally detrimental, for [X], if he was removed from her predominant care.
Accordingly, as with many cases arising at the interim stage, this is a case about risk and how that risk should be assessed at an early or provisional stage. In the father’s view, the risk issues he has raised are of sufficient moment to justify either a shared care regime or the change of [X]’s primary care from his mother to his father.
In the mother’s view, she has answered the father’s criticisms about her current situation and it would be emotionally full of risk, for [X], if the court was to put in place an untested regime, in lieu of the long standing care regime, which saw the child living mostly with his mother.
The nature of an interim hearing
Given their abbreviated nature, interim hearings do not allow the court to resolve competing issues of fact. There is not sufficient time for the documentary evidence of witnesses to be subject to scrutiny through oral cross-examination.
In addition, as with this case, at an early stage, there is rarely time for an expert assessment of the family concerned to have taken place. These assessments are routinely obtained in cases involving arrangements for children. They envisage an observation of the child concerned with each parent and a process of interview with relevant family members and for obvious reasons are usually central to what outcome will be in a child’s best interests.
These two factors – the absence of cross-examination and comprehensive expert evidence, regarding [X]’s psychological needs and attachments – dictate that there must be a further and more comprehensive hearing of the parties’ competing applications, unless the parties themselves agree on final orders, in respect of [X], beforehand.
Accordingly, at this interim stage, the responsibility of the court is to put in place provisional orders, until such time as a more comprehensive hearing can take place. Accordingly, I hasten to emphasise to each of the parties concerned, I am not deciding the case today on a final basis.
Rather, I am putting in place some provisional arrangements until there can be a more thorough hearing. In so doing, the court must be aware of the inherent limitation of interim hearings.
The court cannot, however, abrogate its responsibility to consider child protection issues, just because of the truncated nature of the hearing and the difficulties arising in making a positive finding that the child is at risk of harm at the interim hearing stage.
This is because the best interests of the child concerned in the hearing, both at the interim and the final hearing stage, always remain the paramount or most important consideration.
Background
The parties do not dispute that, after they separated, it was agreed between them that [X] would live with his mother and spend time with his father on alternate weekends and at other times as agreed.[2]
[2] See father’s affidavit at paragraph 4 and mother’s affidavit at paragraph 5
In my view, it is a significant thing that the parties have been able to agree on arrangements for [X]’s care, in the approximately three years since their separation, without having to come to court to seek formal orders. This must indicate that something, on some level, has been working between them.
It is also agreed that this agreement has been facilitated, not without its ups and downs, for a number of years. [X] has lived with his mum and spent regular alternate weekends and weekly overnight periods with his dad. Accordingly, it is clear that [X] has a strong relationship with both his mother and father, who each love him very much indeed. From Ms Franklin’s perspective, she describes herself as being [X]’s primary carer.
Although there has been no involvement of the court hitherto that is not to say that the parties have an easy relationship with one another and have been able to agree on everything to do with [X]’s care. Rather, they have sought professional assistance, from the Family Relationship Centre in Salisbury, to formalise living and time spending arrangements, for [X], through the mechanism of a parenting plan, which was finalised in April 2016.
The parenting plan provided that [X] would live with his mother and spend time with his father each Tuesday from 3:30pm until 12:30pm the following Wednesday; as well as on alternate weekends, from 3:30pm Friday until 7:00pm the following Sunday. Given [X]’s tender years, it did not deal with school holidays, but did make provision for special occasions such as Christmas, Easter, Father’s and Mother’s Day and any other agreed special family celebration.
In the parenting plan, the parties also agreed, ostensibly at least, that they would attempt family dispute resolution, before seeking any court orders. They also agreed to communicate more fully about arrangements to do with [X] and not expose him to conflict between them. In this context, they covenanted, with one another, to speak in respectful terms of each other and refrain from criticism. The plan did not deal with where [X] should go to school.
These are praiseworthy sentiments. However, for reasons which are controversial at present, the longstanding arrangement for [X]’s care broke down in early 2018, which as indicated above seems to have been around the time Ms Franklin moved to Suburb D – a circumstance Mr Grigg seems to have learnt from [X], rather than Ms Franklin herself.
On any view, the use of a young child as a conduit for important information to pass between parents is both unfortunate and potentially a powerful source of miscommunication between them – necessarily young children are not the best messengers for complicated information. In any event, this scenario seems to have provided the catalyst for the current proceedings, which the father commenced on 21 March 2018.
Prior to the commencement of the case, the father elected to take [X] into his sole care, rather than return him to his mother, as ordinarily would have been scheduled by the parenting plan, on 16 March 2018. He was advised by his solicitor not to do so.
The basis for this decision, on Mr Grigg’s part, was matters [X] had allegedly told him, about his mother’s accommodation arrangements, which confirmed his (the father’s) growing perception that [X] was being neglected whilst in his mother’s care.
In particular, the father alleged as follows:
·[X] was no longer living with his mother but residing with his maternal grandmother;
·In this accommodation he was sharing a room with another child and sleeping on a mattress;
·The mother had essentially abandoned [X] to pursue a relationship with a man who was a notorious drug dealer;
·The mother was smoking Ice with this person;
·The mother had longstanding issues to do with her mental health, including a diagnosis of bipolar disorder.
·[X]’s attendance at school had been irregular and he had been presented in dirty clothing;
·[X]’s school had been concerned that he had not been provided with lunch and was often late for school;
·[X] himself had begun to exhibit behaviour problems, including outbursts of anger and aggression.
Because of his concerns, on at least two occasions Mr Grigg has made notifications of potential child abuse regarding [X] whilst in his mother’s care, to the Department of Child Protection. In addition, as a consequence of his concerns, a Notice of Risk has been filed on his behalf.
As a consequence of the Notice of Risk, the Department for Child Protection has provided [X]’s child protection history. This indicates that the Department has had no investigative involvement, in respect of [X] and his parents and each of the notifications received by it has been assessed as not warranting the statutory threshold for departmental investigation.
Given the father had taken unilateral action in respect of [X] and was withholding him from his mother, contrary to the parties’ agreed care arrangements for him, Mr Grigg asked for his application to the court to be listed urgently. His request was granted and his application was listed in a busy duty list on 10 April 2018.
By this date, the mother had not had sufficient time to prepare a formal response to the father’s application. She is not in a strong financial position and it was necessary for her to apply for legal aid. This had been granted, by 10 April, but her lawyer had not been able to draft a response and affidavit in support. Accordingly, Ms Franklin was at a significant disadvantage, on the first return of the father’s application.
Against this difficult background, the court was compelled to adjourn the further hearing of the matter, so that the mother could formally put her side of things. At the time, her lawyer indicated that she did not agree with the gravamen of the criticism made against her and it was her perception that Mr Grigg had opportunistically seized on events, in order to advance his personal agenda, so far as care arrangements for [X] were concerned.
In the circumstances, I was anxious to ensure that the adjournment was for as short a period of time as possible, given the obvious controversy created by the case – it being Ms Franklin’s position that notwithstanding the absence of formal documentation, the court should order [X]’s return to her care, on the basis that she was indisputably his long-term primary carer and she disputed the thrust of the allegations made against her.
In addition, given that the parties had been able to agree on [X]’s care, for a significant period of time, I was also hopeful that they may be able to sort out the various issues, which had arisen recently between them, with the assistance of family dispute resolution counsellor, attached to the court. An urgent family resolution dispute conference was obtained for 19 April 2018.
Given these necessary procedural delays, it still remained necessary for the court to put in place some arrangements for [X]’s care over the next three weeks, which was the period of the adjournment envisaged, it was anticipated would provide sufficient time for both the conference to take place and for the mother to file her documents.
In these circumstances, I requested that the parties attempt to see if they could reach some middle ground, for this relatively short period, which would focus on [X]’s best interests. In this context, I noted my concern that [X] had not interacted with his mother for a reasonably significant period of time given his age and the indisputable fact that she had played a central and important role in his life up to this stage.
I acknowledge that it was naïve for me to expect the parties to be able to reach some common ground, in what can only be described as difficult circumstances. For obvious reasons, what had occurred between them had ruptured any previous semblance of trust and cooperation. Necessarily, it was to be expected that each would be influenced by tactical considerations regarding the ultimate outcome of the proceedings. Regrettably, that is a frequent incident of bitterly contested children’s cases, such as these.
Against this background, the parties agreed that the child would live with each of his parents in what is commonly referred to as a shared care or equal time regime. This was the outcome negotiated by the parties’ respective legal advisers, neither of whom was inclined to surrender easily any perceived advantage to the other.
In general terms, from the perspective of the competing parents concerned, such a regime may be seen as being completely and transparently fair – one parent has exactly the same time as the other parent, with the much beloved child – in rhetorical terms what could be fairer?
However, the court’s duty is to approach such cases from the perspective of the child rather than the parents. The abiding issue for the court is what is best for the child not what is best for the parents or who is the more deserving of them.
In many cases, an equal time regime, although fervently advocated by one parent or the other, may not be in a child’s best interests because of developmental issues or because the relationship between the parents themselves is so difficult it renders such a regime problematic, from the child’s point of view.
In any event, this short-term arrangement was hedged, by the parties, with all manner of provisos, to indicate that no concessions whatsoever had been made. The order in question began with the following preamble:
“UPON NOTING that these Orders are made without concession or prejudice to the ultimate applications of the parties.”
With some significant reservations, I approved the compromise, sanguine that it would only be in place for a short period of time and hopeful that the conference between the parties might assist them to reach a sensible and workable outcome focussed on what was best for [X] and would do the least damage to how best to their co- relationship as [X]’s parents.
At this stage, the issues in dispute can be summarised as follows:
·The father is open to the equal time regime continuing on an interim basis, although his final position is that [X] should live predominantly with him;
·From the father’s perspective, such a regime will ameliorate the risks of [X] living predominantly in his mother’s care, given his categorisation of her as a parent, who is compromised by mental illness and drug addiction;
·His working hours are flexible and he will be able to ensure that [X] is delivered to school on time, whilst he is in his care;
·From the mother’s perspective, she seeks a return to the previous status quo, so far as arrangements for [X]’s care are concerned, namely that he lives predominantly with her and spends alternate weekends and some other overnight period, in his father’s care;
·She asserts that the parties’ parenting relationship is too compromised to make a shared care regime work effectively and, in any event, would not be in [X]’s best interests;
·The current regime was foisted on her through necessity, when the father took things into his own hands and withheld [X] from her;
·In taking unilateral action, in respect of [X], the father has demonstrated a poor level of insight into the responsibilities of being a parent, particularly given the fact there can be no doubt she (the mother) has hitherto been [X]’s undisputed primary carer.
At present, [X] has been enrolled and attends for his primary school at School A . Both parties signed his enrolment form in October of 2016. This form indicates that [X] would commence in reception at term 1 2018.
At the time of this enrolment, Ms Franklin was also living in Suburb E; whilst Mr Grigg lived in Suburb F, an adjoining suburb. Accordingly, the school was convenient to both and so mutually acceptable.
Ms Franklin has recently moved. She is currently living with her mother in Suburb D, which is approximately 20km away from Suburb E. It is Ms Franklin’s evidence that it takes her approximately 40 minutes to drive to and from School A from her home. It is her case that the travel involved is also expensive for her.
In all these circumstances, she wishes to change [X]’s school enrolment from School A to School B Primary School, which would be more convenient to her current place of residence. It is also her position that, due to irregularities on the enrolment form, she does not qualify for a school card and therefore cannot contribute to [X]’s school fees, which she personally cannot afford. This is bitterly contested by Mr Grigg.
The issue of which school [X] should attend has assumed totemic significance in these proceedings. From the father’s perspective, School A is a good school, which will provide [X] with a good educational start in life. He is prepared to commit significant financial resources to pay [X]’s fees at the school.
In addition, in his view, it was the school upon which the parties agreed and [X] should not be disrupted because the mother has moved. It is his case that the mother’s recent precipitate move is characteristic of her volatile personality and indicative of the fact that she is unable to provide any lasting stability in [X]’s life.
The mother’s concerns about the father and her position generally can be summarised as follows:
·Her living arrangements are not unstable. She lived at the same address from February 2015 until late February 2018;
·She has not changed her telephone number frequently and has always been contactable through Facebook messenger, which is essentially the same as a telephone service other than it is free;
·The father is a demanding and difficult person with whom to deal in respect of arrangements for [X]’s care;
·The father pinches, pushes and shoves her, in order to get his own way;
·In November 2015, the father assaulted her in [X]’s presence, at a handover;
·In these circumstances, she agrees that she avoided Mr Grigg for a period of time but denies that she vanished. Rather, she was wary of being in physical proximity to the father;
·[X] has had significant behavioural problems since the parties separated. It is she, rather than the father, who has attended to [X]’s psychological needs;
·[X] has not missed extensive periods of school, whilst in her care. He missed one day to attend a medical appointment;
·The child is not presented in an unkempt manner. Any stains on his uniform are attributable to the normal incidences of childhood;
·[X] is provided with appropriate lunches;
·She and [X] currently live with the maternal grandmother in a three bedroom home. Also occupying these premises is Ms Franklin’s sister, who has a six year old child, who shares a room with [X];
·[X] does not like School A and would prefer to attend School B Primary School, which his cousin attends;
·She is no longer in any serious relationship and is willing to undergo a random drug screen test or tests to establish this fact;
·The father suffers from anxiety and depression and consumes alcohol to excess;
·She herself has been diagnosed with depression and borderline personality disorder and been prescribed Fluoxetine (Prozac) an anti-depressant.
The child dispute conference
Family consultant Ms S convened the child dispute conference. She reported that both parties alleged to her mutual incidents of physical and verbal violence, during their relationship, but each blamed the other for these incidents. The father also raised concerns about the mother’s alleged use of methamphetamine and cocaine, which the mother denied, whilst acknowledging that she had previously tried illicit drugs.
The father raised concerns with Ms S about the risk of [X] being exposed to the mother’s own illicit drug use and that of others associated with her. For her part, the mother disputed whether Mr Grigg would be able to care for [X] appropriately because of his work commitments. In these circumstances, she indicated that [X] was looked after by the paternal grandparents, about whom she had no concerns.
To Ms S, both parties acknowledged a history of depression and anxiety, for which both had been prescribed medication. In the context of these proceedings, no details have been provided about what is meant, in psychiatric terms, so far as the mother’s conceded diagnosis of borderline personality disorder is concerned. At this stage, there is no definitive expert evidence in respect of either parties’ mental health.
Ms S described Mr Grigg as being child focussed and genuine in respect of his motivation to ensure [X]’s best interests were secured. I accept that this is the case. Ms Franklin was described as being self-focussed and at times emotionally vulnerable. She described herself as feeling weird if she was away from [X] for a lengthy period of time. From Ms S’s perspective, this might suggest she had an excessive emotional reliance on the child.
In my view, it was significant that both Mr Grigg and Ms Franklin indicated to Ms S that:
·it was important for [X] to have a relationship with each of his parents as it was agreed he enjoyed his relationship with them both;
The parties also indicated to Ms S that [X]’s behaviour had been concerning, whilst at school. In this context, Ms Franklin described a child who suffered separation anxiety on leaving her care, particularly at school drop offs.
The issue of the appropriate school for [X] was a significant bone of contention, at the family dispute resolution conference. Mr Grigg alleged that Ms Franklin had not consulted with him about her wish to move school. For her part, Ms Franklin said she had informed the father by text. This had all arisen in the context of [X] not attending school on one day.
I have provided this summary of how the school issue was handled between the parties, for the following reason. Clearly, it was handled very badly. In my view it is indicative of the fractured communication relationship between the parties. I may be regarded as a luddite but, in my view, significant parenting issues are better discussed in person rather than via perfunctory texts.
Although I cannot directly mandate it, it would be sensible for the parties to think about ways in which they can communicate more effectively. I will start things off by making an order instigating a communication book between them. This may be seen as old fashioned and perhaps some electronic diary might be better. That is a matter for the parties. What is important is that the communications should contain only information relevant to [X] and its tone should be polite.
In this context, Ms S categorised the contentious issue of which school [X] should attend as likely to be adult focussed rather than turning on any differing assessment of what was likely to be best for [X] personally.
In the conclusion to her report to the court, Ms S reported that no agreement had been reached between the parties. This is not surprising given her assessment that there is currently no co-parenting relationship other than text messaging.
In these circumstances, Ms S indicated that it would be necessary for the court to adjudicate the interim dispute between the parties. She was in favour of the court obtaining some form of independent assessment of Ms Franklin’s current level of psychiatric functioning.
Legal principles applicable
The factors which the court must consider in determining a child’s best interests are set out in section 60CC of the Family Law Act 1975. Priority is to be given to protecting a child from the physical and psychological consequences of being exposed to abuse, neglect or family violence.
The court is also, given the structure of the Act, required to give close consideration to the benefits, which the child is likely to gain from having a meaningful level of relationship with both his/her parents. Other factors, set out in section 60CC(3), characterised as additional factors, must also be considered, as relevant.
Essentially, the court, at the interim stage, must look at the evidence, before it bearing in mind both its conflicts and the strands of what appear to have been agreed, against the section 60CC factors and attempt to put in place the outcome, which it considers will best serve [X]’s interests.
In many cases, this task will entail assessing risk, particularly in the protective context. The need to assess the degree of risks arises in family law cases when one parent says the other represents a danger to the child concerned and the other denies the truth or gravamen of the allegation made, often asserting that the risk lies with the other parent.
The court must assess risk in this conflicted and heated context. It must assess the degree of risk, including the risk of damaging a beneficial relationship to the child concerned and put in place responses which are proportionate to the degree of risk so assessed.[3]
[3] See Deiter & Deiter [2011] FamCAFC 82
In legal terms, the High Court has indicated that the court should not take objectively unacceptable risks relating to the welfare or safety of the child concerned, in both a psychological and physical sense. [4]
[4] See Slater & Light [2013] FamCAFC 4
Because the Act emphasises the importance, subject to protective concerns, of both parents being involved with their child, a presumption of equal shared parental responsibility between the parents concerned arises.
This presumption is rebutted by:
a) reasonable grounds to believe that a child has been exposed to neglect abuse or family violence;
b) it is not in the best interests of the child concerned; or
c) at the interim stage, it is not appropriate.
It is this presumption which triggers the court’s obligation to consider equal time or in the alternative, substantial and significant time spending arrangement between the child and parent concerned.
These outcomes are, in turn, subject to the equal satisfaction of two criteria. If you like, two green lights must be present:
a) it is in the best interests of the child concerned; and
b) considerations of what is reasonably practicable in all the circumstances.
In determining what is reasonably practicable, the High Court[5] has said that the court must look at the reality of the parenting situations surrounding the child concerned. In this context section 65DAA(5) of the Act is germane.
[5] See MRR & GR (2010) 240 CLR 461
It directs the court to look at such things as the parents’ capacity to communicate together and make common decisions and solve problems together relating to their child and above all, the impact on the child concerned of equal time or substantial and significant time.
At the end of the day, the court is required to consider a multiplicity of factors and attempt to craft an idiosyncratic order, reflecting the special circumstances of the child concerned, after it has considered all the relevant factors, germane to the child’s best interests.
Consideration of relevant section 60CC factors
The evidence provided by the parties, to Family Consultant Ms S unequivocally indicates that [X] has a significant level of relationship with both his mother and father. As such, it is likely to be the case that he will benefit from having a meaningful level of relationship with both his mother and father at this stage.
In this context, the court is called upon to assess the risk, which the lifestyle and personality of each party may pose to [X], who given his age is to be regarded as a vulnerable child.
In my view, Mr Grigg has not established that Ms Franklin’s relationship with the gentleman identified by him as a drug dealer poses an unacceptable risk to [X]. Apart from Mr Grigg’s assertion of these matters, there is no concrete proof available to either him or the court about this person and whether he continues to be involved with the mother, a fact which she denies.
In this context, in my view, it is a significant thing that Ms Franklin is not living with the person concerned. Rather, she is living with her mother. In my view, it is a proportionate response to the degree of risk, as currently identified by the father, that Ms Franklin be directed to undergo one random drug screen test, in the period of the adjournment, at her own expense.
The same can be said in respect of Mr Grigg’s assertions that [X] is being neglected in terms of his hygiene and dietary needs. He has not provided any independent objective evidence to support his allegations. There is little, if any evidence from School A. In addition, I am unable to identify both if and why [X] is exhibiting behavioural problems.
Similarly, I am not in a position to assess, with any degree of accuracy, the risks said to be posed to [X] as a consequence of Ms Franklin’s mental health. What is clear is that Ms Franklin has consulted her doctor but has not been particularly proactive in seeking out any form of counselling, although she was apparently offered a mental health plan. She has not been admitted to any psychiatric hospital recently and allegations made by Mr Grigg, regarding self-harm, are historical and have not been actuated.
In my view, the most significant factor, for the court, in assessing the risks arising for [X], in respect of future interactions with each of his parents, is their joint concession that he has a good relationship with each of them and enjoys spending time with them both. This is not indicative of an unacceptable risk on the part of either parent.
[X]’s views about future care arrangements have not been canvased. In any event, given his age, he is too young for any opinion expressed by him to be given a significant degree of weight.
The evidence, truncated and hastily prepared as it is, indicates that [X] has significant relationships on both his maternal and paternal aspects. Ms Franklin does not have any criticisms of Mr Grigg’s parents. It is also her case that [X] lives at her home with other members of their extended family, particularly [X]’s grandmother. For obvious reasons, these relationships are likely to be important for a child of [X]’s age.
In my view, one of the more significant considerations arising in this case, is the possible moment of the longstanding arrangements for [X]’s care being abruptly changed [see section 60CC(3)(d)]. In my view, it is significant indeed that the parties agreed some time ago that [X] would live mainly with his mother and spend regular defined periods of time with his father.
In these circumstances, in my view, there needs to be a cogent reason, readily identifiable at this interim stage, for changing this longstanding arrangement. This is particularly so given that the arrangement was consensually reached and, until recently, neither party has formally sought to change it.
At this stage, I am unable to evaluate the bona fides of the various factors which motivated Ms Franklin to move from the vicinity of Suburb E to Suburb D. Given Ms Franklin’s financial circumstances, the move, once having been done, cannot easily be undone. However, in my view, at least in the short to medium term, Ms Franklin will have to live with the consequences of her actions.
The evidence indicates that both parties agreed upon School A as being an appropriate school for [X]. He is attending that school currently, albeit he has only been there for approximately a term and, as such, cannot be said to be significantly settled there. However, any move from this school, particularly at some remove from Mr Grigg’s home, is likely to unleash further parental conflict, which cannot be helpful for [X].
Ms S’s assessment was that the schooling issue was one which was adult focussed and centred on location. At this juncture, it seems to me that issues of personal convenience are central. How could it be otherwise, given School A was satisfactory to Ms Franklin, when she lived nearby and the school is no longer appropriate following her move.
The parties parenting plan does not deal specifically with the allocation of parental responsibility between them, particularly in respect of the making of decisions concerning [X]’s education. If a parenting order is ultimately made, it may deal with the allocation of responsibility for making decisions about major long-term issues in respect of [X] [see section 64B(3)].
Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Pursuant to section 65DAC of the Act, parents, who share parental responsibility, are directed to make decisions regarding major long-term issues, in respect of their children, jointly.
The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
In this context, it is, for obvious reasons, not helpful to the facilitation of a constructive parenting relationship that one parent foist the other with a fait accompli in respect of some major long-term issue. It is better for the emotional stability of any child concerned that at least a bona fide attempt is made to talk such issues through.
In a case like the present one, it is highly probable, if not certain, that Mr Grigg and Ms Franklin will have to work together in a parenting relationship, centred on [X], for the next thirteen years, if not for the remainders of their lives. In this sense, I must be careful not to do any unnecessary damage to the on-going viability of that relationship and it would be prudent, for the parties themselves to try and adopt the same attitude.
The convenience of a party can be a factor in determining which school a child should attend. However, in my view, given the controversy of this issue, I must be cautious about precipitately determining it, against a background of incomplete evidence, at the interim hearing stage. In my view, these various factors militate in [X] remaining at his current school, until further evidence has been obtained and examined, notwithstanding the inconvenience likely to be occasioned to Ms Franklin.
Pursuant to section 60CC(3)(f) & (i), I am required to consider the capacity of each of [X]’s parents and any other person, including grandparents or other relatives of the child, to provide for the needs of the child, including the child’s emotional and intellectual needs. I am also required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
In this particular case, both parents have raised significant concerns about the other parent in respect of these two criteria. In my view, at this stage, I am unable to make any definitive findings in respect of these matters, other than that both parties have exhibited significant deficits in respect of communicating with the other parent and, at times, both have been motivated by self-interest, rather than what is the best outcome for [X].
Given the polarised positions of the parties and the deficits in their ability to communicate effectively with one another, I have come to the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at this stage.
Accordingly, it is not necessary for me to consider an equal time arrangement or a substantial and significant time arrangement pursuant to the provisions of section 65DAA. However, such an outcome remains open to the court, if it is considered that either such regime is calculated to be in [X]’s best interests.
At this stage, I do not consider that an equal time regime would be in [X]’s best interests. At this stage, I consider that the various section 60CC factors militate in favour of the mother providing [X]’s predominant care, at this stage, as has been the case until fairly recently, when the father decided, in conjunction with legal advice, not to return him to her.
I reach this view for two predominant reasons. Firstly, the evidence clearly indicates that the mother has been [X]’s primary carer for the vast majority of his life and, in my view, there are potential emotional risks for the child of changing this arrangement, at an interim stage, on the basis of limited evidence.
Secondly, I have to consider the possible outcomes of a change of such a long-term arrangement. In my view, negative implications are likely to outweigh positive ones. In addition, the court should not easily condone significant changes in arrangements which have been precipitated by self-help.
At this stage, I am not of the view that there are serious risks relating to the mother’s care of the child. She has answered the very many criticisms levelled against her and some of the issues raised by Mr Grigg appear to have their origins in miscommunication, which Ms Franklin has compounded by acting unilaterally by moving to Suburb D.
Clearly there are many question marks in the current case, but at the interim stage there are invariably such question marks. However, doing the best I can at this stage, I do not think there are such risks relating to the mother which would be unacceptable for me to take in respect of returning [X]’s care predominantly to her.
At this stage, I am not minded to order Ms Franklin to undergo a forensic psychiatric examination. In my view it would be more useful for her to follow through on her original strategy of obtaining a mental health plan from her general medical practitioner and then obtaining some details from her referred treating professional, which can be passed on both to the father and the court. Once that information is to hand, my view about the necessity for a medico-legal assessment may change.
In my assessment, it would be more useful to obtain a psychiatric evaluation, if it is needed, at a later stage, when more evidence is to hand. My experience of psychiatric assessments, in the family law setting, when a person is sent for such a medico legal examination, it is rarely the case that any psychiatric infirmity is detected. Such assessments rely on the person concerned providing a history to the examining doctor. For obvious reasons, such individuals are hardly likely to provide damaging material and will be at pains to impress the assessor concerned.
In all these circumstances, it is my view that a family report is likely to be of far greater assistance. I will order such a report, which will be released to the parties on or about 17 August 2018. I will also fix the parties competing applications for final hearing on 1 & 2 April 2019. I will order that the mother undergo one random drug screen test, at her own expense, in the period of the adjournment.
Otherwise, I will make orders returning [X]’s care to the previous status quo. In addition, I will make order dividing the school holidays between the parties. I will also make an injunction restraining the parties from changing [X]’s school without the written consent of the other and some other orders intended to support the parties’ parenting relationship.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 4 May 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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