Hamilton & Hamilton
[2024] FedCFamC2F 1177
•27 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hamilton & Hamilton [2024] FedCFamC2F 1177
File number(s): BRC 507 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 27 August 2024 Catchwords: FAMILY LAW – PARENTING – Final Orders – Where the Respondent’s mother’s case was determined as having no reasonable likelihood of success part way through the final hearing. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZQ Division: Division 2 Family Law Number of paragraphs: 23 Date of last submission/s: 27 August 2024 Date of hearing: 26 – 27 August 2024 Place: Canberra Solicitor for the Applicant: Andrew Warren Associates Counsel for the Respondent: Mr Iuliano Solicitor for the Respondent: Brightstone Legal ORDERS
BRC 507 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAMILTON
Applicant
AND: MS HAMILTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
27 AUGUST 2024
THE COURT ORDERS THAT:
1.All previous parenting orders regarding X born in 2011 and Y born in 2018 (the children) are discharged.
Parental Responsibility
2.That the father have sole parental responsibility for the children and sole responsibility for making decisions about major long-term issues in relation to the children.
3.Prior to making any major long term decision with respect to the children, the father is to seek the mother’s views and is to take them into account prior to making the decision.
International Travel
4.For the avoidance of doubt, the Order granting the father sole parental responsibility includes the father being permitted to:-
(a)Take or send the children to a place outside of Australia; and
(b)Obtain or renew any Australian Travel Document or international travel document without the consent of the mother.
Live With
5.That the children live with the father.
Time and Contact with the Mother
6.That the children spend time with the mother and have contact with the mother as agreed between the parents.
Communication
7.That within seven (7) days of the date these orders, the father is to notify the mother of a parenting app such as Our Family Wizard that the parents are to use for all communication between them.
8.The mother is at liberty to send cards, gifts and letters to the children by post and/or email on their birthdays and at Christmas each year.
9.To facilitate the preceding order, the father shall provide to the mother within seven (7) days of the date of these orders an address to send cards, gifts and letters to the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
X is 12 years old and Y is 6 years old. They live with their father in City B, NSW. Their mother lives in City C, Queensland. The parents are in dispute about the care and welfare of X and Y. In particular, the manner of contact and time they are to have with their mother. The father commenced these proceedings in April 2022. The matter came before me for final hearing on 26 August 2024 with an estimate of three days.
THE APPLICANT FATHER’S CASE
By his Amended Initiating application filed 23 July 2024, the applicant father sought orders that:
(a)The children live with him and he have sole responsibility for major long-term decisions; and
(b)The children have contact with the mother as agreed.
THE RESPONDENT MOTHER’S CASE
By her Response filed 8 December 2023, the mother sought interim orders including that:
(a)The children live with her;
(b)The children spend time and communicate with the father as recommended by the Family Consultant; and
(c)Changeover take place in Town D, QLD.
On the morning of the commencement of final hearing, the mother filed an Amended Response which conceded that the father have sole responsibility for making major long-term decisions and that the children live with the father. She sought orders including that:
(a)The father consult her before making any major long-term decisions;
(b)The children spend half of all school holidays with her in City C;
(c)The father be required to ensure the children spend four days every month with the paternal grandparents;
(d)There be mutual permissions and conditions about international travel and passports; and
(e)There be video calls with the mother for at least 15 minutes three times per week.
THE ICL’S CASE
By the Case Summary Document filed by the Independent Children’s Lawyer on 22 August 2024, the Independent Children’s Lawyer contended that:
(a)The children live with the father and he have sole responsibility for major long-term decisions as sought by the father and in accordance with the recommendations of the expert.
(b)The children spend supervised time with the mother on at least 6 occasions over 12 months in City B and if there are no concerns after 12 months then they spend unsupervised time with the mother in City C.
(c)The mother has demonstrated an inability to self-regulate.
(d)Since January 2022, the children have spent time with the mother on two occasions: 5‑6 August 2022 and 7-9 October 2022.
(e)X (12) does not want to spend any face-to-face time or have Facetime communications with the mother.
(f)Y (6) wants to remain living with the father.
(g)The father has demonstrated he is competent at exercising parental responsibility.
(h)The mother does not appear to be able to prioritise the children’s interests over her need to avoid circumstances that she finds further traumatising.
(i)There is nothing to indicate the children are at risk in the father’s care.
THE HEARING
Cross-examination of the mother by the solicitor advocate for the father commenced on day one but was not completed. At the commencement of day two, I made remarks which led to the making of final orders. Reasons for the Final Orders were included in those remarks which have since been settled and are set out below.
REASONS
I was concerned with an answer that the mother gave on day one, which was not responsive to a question, which was “I still don’t see the point in living because I don’t have my children. They’re my only reason to live.”
I was also concerned with the effect that the proceedings and cross-examination of the mother was having on her. Her behaviour in the two hours under-cross examination on day one of the hearing was concerning for herself and her position in this case. Her default position was one of aggressive defensiveness. She escalated quickly and unreasonably. She was clearly upset and easily becomes dysregulated when confronted with the reality of the situation where, as much as she would like it to be different, she does not currently have a relationship with her children.
I understood from the mother’s perspective: if only the children had the opportunity to be with her in City C; they had video calls with her; they spent time with her proxy in City B (being the paternal grandmother) then all would rectify itself, that she would be fine, and the children would also be fine.
However, there is insufficient evidence in the mother’s own case to support the three Orders that she seeks that:
(1)X and Y spend half of all school holidays with her in City C;
(2)The father be compelled to ensure the children spend four days every month with the paternal grandmother; and
(3)X and Y be compelled to have minimum and regular electronic communication with the mother.
The facts with respect to these issues are uncontroversial. They include:
·The children have not spent time with the mother since January 2022, except on two occasions only: 5-6 August 2022 and 7-9 October 2022.
·The only scope for a resumption of the relationship and of time, is via supervision in City B. The mother has demonstrated she is incapable of doing so, and her case is that she is not capable of doing that in the future.
·The evidence of the paternal grandmother is evidence upon which I comfortably find that it would be contrary to the children’s interests for them to be forced to spend time with the paternal grandmother where she is likely to expose them to psychological harm with her extremely negative views and opinions about their father.
·The children understandably find electronic communication with the mother difficult, and they do not want to do it. They are likely to be met with derision and anger from the mother if they were to be perceived by her as not participating in the way or manner in which she expects.
These circumstances have not been overcome in the mother’s own case.
By definition, they cannot be overcome in cross-examination of the father where the mother concedes both of the orders that the father seeks which are that the children live with him and that he have sole responsibility for making decisions about major long-term issues.
They cannot be overcome in cross-examination of the Expert. The Expert recommendations are nearly two years old. They recommended 12 months of supervised time which has not occurred. The children’s views have only solidified. The mother has taken steps towards treatment and completion of the recommended courses, but she has not achieved what was recommended by the expert. Nothing in the mother’s case in chief over the past nearly two years is evidence of improvement in the situation on which to mount a case for a change in the expert’s opinion and recommendations.
In the circumstances where the mother has no further evidence in chief to bring, I am of the view that there is no reasonable likelihood of success for the mother in pursuing the three orders that she seeks.
With respect to the orders that are sought by the father and the Independent Children’s Lawyer, and also the orders sought by the mother, I must regard the best interests of the children as the paramount consideration.
In determining what is in a child's best interests, I have had regard to the matter set out in s 60CC of the Family Law Act 1975 (‘the Act’).
I adopt in my reasoning the father’s submissions in his Case Outline Document at paragraphs 1-16 and I adopt in my reasoning the Independent Children’s Lawyer’s submissions in his Case Outline Document at paragraphs 15-29, and 34. They are Annexed to these reasons.
With respect to responsibility for making major long-term decisions, it is agreed that the father is to have sole responsibility and he is content to seek and consider the mother’s views prior. I have no trouble finding that is in the best interests of the children.
I have also considered the principles in s 69ZN of the Act, and the Court’s general duties in s 69ZQ, in particular at subsections:
69ZQ General duties
(1) In giving effect to the principles in section 69ZN, the court must: […]
(a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and […]
(d) in deciding whether a particular step is to be taken--consider whether the likely benefits of taking the step justify the costs of taking it.
THE FINAL ORDERS
I advised the parties that, subject to any submissions otherwise, I intended to proceed to make final orders at that stage of the proceedings. The matter was stood down for the purposes of:
(a)Providing counsel for the mother an opportunity to obtain instructions and make any submissions in light of my remarks; and
(b)For the father and the ICL to prepare a joint Minute (or competing Minute if necessary) of the final form of orders which they seek in circumstances where they have each indicated they consent to certain orders proposed by the other.
On resumption:
(a)Counsel for the mother made submissions conceding that there was no likelihood of success for the mother in pursuing the orders that she sought; and
(b)A joint Minute of final orders sought by the father and the ICL was tendered.
Final Orders were made in accordance with that Minute.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Mansfield. Associate:
Dated: 2 September 2024
ANNEXURE A
Father’s Case Outline Document, paragraphs 1 – 16
s.60CC 2(a) - safety
1.It is contended that the court should have significant concerns for the safety of the children in spending time with the respondent mother, or indeed, as she seeks, them living with her.
2.In support of this contention, the father points to:
a.the mother's lengthy history of mental ill-health, when the extremes of her emotional and behavioural dysregulation place the children at risk of psychological and/or physical harm;
b.the mother's inability and or unwillingness to acknowledge her mental ill-health and engage in clinical interventions.
s.60CC 2(b) - the children's views
3.X's views have been made plain to the court child expert in September 2022. In this regard:
a.X is now aged 12;
b.in September 2022 he expressed his wish that he wanted to "stay with dad" (family assessment report, paragraph 110)
c.those wishes were assessed by the court child expert as being based on valid anxieties and concerns regarding the mother's behaviour (paragraph 231), and were not based on peripheral matters.
d.X has not been reassessed by the court child expert in the last 2 years, and has only had further contact with the mother once (in October 2022 for a weekend).
e.Such evidence that that is available to the court as to X's wishes since that time are contained in the father's affidavit. The father's evidence particularly between para 108 and 117 inclusive is to the effect that X:
i.does not want to spend time with the mother and
ii.is reluctant to speak to her on Face Time.
4.Y is now aged 6.
a.he has not been interviewed by the court child expert;
b.the father's evidence is that Y does not wish to speak to the mother, and indeed, often will not engage in the Facetime calls,
c.the father gives evidence that Y remains distressed by the January 2022 incident;
d.the father gives evidence that Y is well settled and has a close and loving relationship with his siblings, de facto stepsiblings, and de facto stepmother.
s.60CC 2(c) and (d) - the developmental, psychological, and emotional needs of the children, and the capacity for the mother to provide for same
5.The court child expert has prepared a detailed report concerning the developmental, psychological, and emotional needs of the children.
6.The expert noted that the children have a strong emotional attachment to the father (202), but whilst identifying that the emotional attachment between Y and the mother appeared to be intact (at that time, 2 years ago), (203) the mother presented with a limited capacity to be child-focused or reflective about the impact of the situation on the children and their needs and best interests. The expert noted that the mother's primary parenting challenges relate to her incapacity to meet the children's emotional needs (220).
7.The evidence of the father in relation to continuing punitive and manipulative behaviour by the mother towards the children is troubling. If accepted (noting that to some significant extent it is either conceded or not challenged by the mother) the evidence would suggest that the mother has little insight into these needs of the children.
8.The father points to the following in support of this contention:
a.The refusal to provide birthday presents;
b.Her refusal to provide gifts unless the children live with her.
9.It is noted that in the mother's response affidavit she concedes (paragraph 6) that she has told the children that their gifts remain with her as they are “too big and expensive to post”, and are for the boys “when they come to visit (her)”, and the part that she likes most about giving gifts is “seeing them open them” (emphasis added).
10.The father gives evidence of inappropriate and manipulative conversation repeatedly emanating from the mother towards both children, including particularly questioning them as to why they "hate her'' (father, 82, 83).
11.This too is not challenged by the mother in her affidavit in reply.
12.It is not surprising in the circumstances that the father gives evidence that the children are resistant to speaking to the mother because they are “sick of” this type of behaviour (father at 84).
13.The evidence is such that it is submitted that the court should have significant concern as to the mother's insight, or her capacity to develop insight, into the developmental, psychological and emotional needs of children.
s.60CC (2)(e) The benefit to the children of being able to have a relationship with the mother, where it is safe to do so
14.Whilst the children may benefit from having a relationship with the mother were she to address her mental health and behavioural issues, there is no evidence that she has or will seek appropriate therapeutic assistance.
15.In the absence of the mother addressing her mental health difficulties, which are exacerbating the difficulties that exist in the relationship between the children and the mother, it is difficult to think how that relationship can be safely restored and be in the children's best interests.
16.The current relationship between the children and the mother is not in the children 's best interests and is damaging the relationship even further.
ICL’s submissions by his Case Outline Document, paragraphs 15-29, and 34
BEST INTERESTS [s60CC (1)]
Children's safety [s60CC(2)(a)]15.The Mother has a history of inadequate self-regulation, at least a far as family issues are concerned. The Mother's poor self-regulation has on occasion led to harming with what may be considered attempts at suicide [Dr F: 82, 84].
16.The most recent incident of the Mother not being able to self-regulate was in January 2022 when the parties' son Mr E [then 17 years old] told the Mother that he wanted to live with the Father and engage in an apprenticeship with the Father. In response the Mother reportedly smashed furniture in the family home, took what appears to be an 'overdose' of paracetamol and said she 'wanted to get in the ocean and float away' [Dr F: 81].
17.The Mother's evidence is that she engaged in ongoing therapeutic counselling regarding her emotional regulation [and other issues], however there has been no recent material from the Mother's Therapist(s) regarding her therapeutic engagements or progress.
18.Since January 2022 the children have spent unsupervised time with the Mother in City B on two occasions [5-6 August 2022 & 7-9 October 2022]. The Father is critical of some of the things the Mother reportedly said about him in the children's presence on the second occasion but otherwise there is no indication that there were any safety concerns on these two occasions.
Children's views [s60CC (2) (b)]
19.X, aged 12 years, has expressed the view to the Independent Children's lawyer that he wants to remain living in City B with his father. Given X's age and ability to articulate his thoughts the ICL is of the view that X's views should be given weight.
20.The ICL met with X on 6 August 2024. X disclosed that he felt the current Facetime regime of speaking with his mother each Tuesday and Thursday is too much. X said that:
a.he does not want Facetime calls to occur at all;
b.on Tuesday and Thursday mornings he wakes up feeling anxious about the calls that will take place in the evening;
c.As the day progresses his anxiety increases;
d.When the call comes at 'exactly' 6.30pm he feels that his mother gets upset because 'I don't have much to say. There's not that much to talk about.'
e.There have been times when he has had to hang up because of the way that his mother speaks to him.
f.X would consider text messages but ‘I don't want to do it because she's too negative.’
21.The ICL discussed arrangements for X to spend time with his mother. X expressed a reluctance to spend any face-to-face time with the mother because of the way that 'she behaves.'
22.The possibility of supervised time being arranged at a Contact Centre was discussed. X did not want supervised time arranged saying that the mother would only 'fake it when someone else is there.'
23.Y, aged 6 years, has not expressed a view about whether he lives with his mother or father but has said that he wants his mother to return his teddies and toys and their pet cat.
24.The ICL is of the view that inferentially Y is of the view that he wants to remain living with the Father.
Capacity for Parental responsibility [s60CC (2) (d)]
25.Since January 2022 the Father has demonstrated that he is competent at exercising his parental responsibility with regard to X and Y.
26.Since October 2022 the Mother has chosen not to spend time with the children in City B [as provided for in the Court's Orders of 24 June 2022 (Order 3 c.)]. The Mother's explanation for not spending time with the children in City B appears to be that, considering significant past abuse/trauma it continues to be too traumatising for her to be in the geographic area where she has previously experienced significant trauma or geographically near the Father, whom she says has perpetrated significant abuse against her [see Dr F: 43, 46, 49, 71 ].
27.The Mother, at least at this point in time, does not appear to be able to prioritise the children's interests over her need to avoid circumstances that she finds further traumatising [Dr F: 73].
Benefit of a relationship [s60CC (2) (e)]
28.Y: Dr F opines that Y's emotional attachment with the Mother is intact [Dr F: 203]. The Father reported to Dr F that Y "loves and misses his mum" [Dr F: 32]. Ms G [Father's partner] reported to Dr F that Y misses his mum [Dr F: 143].
29.X: X has expressed to the ICL that he wants to remain living with the father in City B. X indicated to Dr F that he could live with both parents “if mum’s behaviour changed” [Dr F: 108]. X's attachment with the Mother appears to be is less strong than Y's attachment.
[…]
34.There is nothing to indicate that currently the children are exposed to any family violence whilst living with the Father.
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