Hawkins & Hawkins
[2022] FedCFamC1F 993
Federal Circuit and Family Court of Australia
(DIVISION 1)
Hawkins & Hawkins [2022] FedCFamC1F 993
File number(s): NCC 3799 of 2020 Judgment of: SMITH J Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – Parenting – Ex tempore judgment –Final hearing - Consent orders in regards almost all issues – Where the eldest child (aged 13) has expressed reluctance to spend any time with the mother – Where the relationship between the mother and the eldest child is damaged but not irreparable – Where the parties seek an order for time according to the child’s wishes with an obligation to encourage – Where the ICL seeks an order requiring time – Ordered for time according to child’s wishes with an obligation to encourage. Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks [2015] FAMCAFC 36 Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 5 December 2022 Place: Newcastle Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Umbrella Legal Counsel for the Respondent: Mr Gallimore Solicitor for the Respondent: Next Legal & Conveyancing Counsel for the Independent Children's Lawyer: Mr Graham Solicitor for the Independent Children's Lawyer: Denise Clarke Solicitor & Advocate ORDERS
NCC 3799 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAWKINS
Applicant
AND: MR HAWKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
5 DECEMBER 2022
THE COURT ORDERS THAT:
UPON APPLICATION MADE TO THE COURT by Mr Allen, Counsel for the Applicant Mother and Mr Gallimore, Counsel for the Respondent Father, and Mr Graham for the Independent Children’s Lawyer.
In relation to the Father, MR HAWKINS and the Mother, MS HAWKINS, and the children, W (born 2009), X (born 2012), Y (born 2016), and Z (born 2016) (“the children”), the Court makes the following orders.
IT IS ORDERED ON A FINAL BASIS THAT:
1.The child W spend time with the Mother MS HAWKINS as agreed and arranged between the Mother and W.
2.Within 14 days of the Father MR HAWKINS (and, if necessary, W) obtaining a negative Rapid Antigen Test for Covid-19, that the Father and the Mother meet with the Independent Children’s Lawyer with the child W, for the Independent Children’s Lawyer to explain the Orders to the child W, and for the Mother and the Father to express to W that they both wish for W to spend time with the Mother.
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
3.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Final Orders be made in accordance with the document titled “Consent Orders” and attached hereto.
4.The matter be removed from the list of matters awaiting finalization and all future listing dates be vacated.
IT IS NOTED THAT:
A.The Court asks that the Independent Children’s Lawyer also explain to W the Court’s views. These are that the Judge believes that it would be in W’s best interests to spend time with the Mother; and that this should happen at least once per fortnight from the conclusion of school or 3 pm Friday until the commencement of school on the following Monday (or 9 am Monday if not in a school term); and that more time would be even better. The Judge decided not to order that W spend time with the Mother, even though it would be best for W, because of W’s age. The Judge hopes that W will give the same careful consideration to the Judge’s views in making her decision that he gave to her views in making his.
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 Hawkins & Hawkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIV 2)
AT NEWCASTLE
FILE NO. NCC 3799/2020
BETWEEN
MS HAWKINS
(APPLICANT)
AND
MR HAWKINS
(RESPONDENT)
CONSENT ORDERS
BY CONSENT IT IS ORDERED
PARENTAL RESPONSIBILITY:1.The Father, MR HAWKINS and the Mother MS HAWKINS have equal shared parental responsibility for the children W (born 2009), X (born 2012), Y (born 2016) and Z (born 2016) (“the Children”).
LIVE WITH
2.The children shall live with the parties as follows:
a.W b. 2009 shall live with the father; and
b.X, Y and Z shall live with the parties in accordance with Order 4 herein.
SPEND TIME WITH
3. [Intentionally left blank].
4.The children X, Y and Z spend time with the Mother as agreed and arranged between the Mother and the Father in writing, and failing agreement as follows:
4.1 Until 30 December 2022, on a three week cycle, as follows:
Week 1
4.1.1From 4.30pm on the Friday until commencement of school on the immediately following Monday (or 9am if the children are not at school on that day).
Week 2
4.1.2From 4.30pm on the Friday until commencement of school on the immediately following Monday (or 9am if the children are not at school on that day).
Week 3
4.1.3The children remain with the Father, and the Mother’s time is suspended from 4.30pm on the Friday until commencement of school on the immediately following Monday (or 9am if the children are not at school on that day).
4.2Commencing Friday 30 December 2022, on a week about basis commencing at 3pm on the Friday and continuing until 3pm on the immediately following Friday.
BIRTHDAYS
4.3 On X’s Birthday:4.3.1If X’s birthday falls on a weekday, that X spend time with the parent who he does not wake up with from the conclusion of school (or 3pm) until 6pm.
4.3.2If X’s Birthday falls on a weekend, that X spend time with the parent who he does not wake up with from 12noon until 6pm.
4.4 On Y and Z’s Birthday:
4.4.1If Y and Z’s Birthday falls on a weekday, that Y and Z spend time with the parent who they do not wake up with from the conclusion of school (or 3pm) until 6pm.
4.4.2If Y and Z’s Birthday falls on a weekend, that Y and Z spend time with the parent who they do not wake up with from 12noon until 6pm.
4.4.3In the event that it is not a Leap Year (and therefore there is no 29 February), Y and Z are to spend time with the parent who they do not wake up with as follows:
4.4.3.1If 28 February is a weekday, from the conclusion of school (or 3pm) until 6pm.
4.4.3.2 If 28 February falls on a weekend, from 12noon until 6pm.
MOTHER’S DAY
4.5On Mother’s Day weekend in each year, if the children are not already spend time with the Mother, the children will spend time with the Mother from 5pm on the Saturday immediately prior to Mother’s Day until 5pm on Mother’s Day.
FATHER’S DAY
4.6The Mother’s time with the children be suspended on Father’s Day weekend in each year from 5pm on the Saturday immediately prior to Father’s Day.
CHRISTMAS
4.7For Christmas in 2022 and each alternate year thereafter, from 3pm Christmas Eve until 3pm Christmas Day and the Mother’s time be suspended from 3pm Christmas Day until 3pm Boxing Day.
4.8For Christmas in 2023 and each alternate year thereafter, from 3pm Christmas Day until 3pm Boxing Day and the Mother’s time be suspended from 3pm Christmas Eve until 3pm Christmas Day.
EASTER
4.9For Easter in 2023 and each alternate year thereafter, from conclusion of school (or 3pm) on Holy Thursday until 3pm on Easter Saturday and the Mother’s time be suspended from 3pm Easter Saturday until 3pm Easter Monday.
4.10For Easter in 2024 and each alternate year thereafter, from 3pm Easter Saturday until 3pm Easter Monday and the Mother’s time be suspended from 3pm Holy Thursday until 3pm Easter Saturday.
RESTRAINTS
5.Pursuant to section 68B of the Family Law Act 1975 for the protection of the children, the parents be restrained from consuming alcohol to such a level that would result in their blood alcohol level exceeding the legal driving limit while the children are in their care.
6.Pursuant to section 68B of the Family Law Act 1975 for the protection of the children, the parties be restrained from consuming illicit substances within 24 hours of the children coming into their care and for the duration of the time that the children are in their care.
CHANGEOVER
7.In the event that changeover does not occur at the children’s schools, then, unless otherwise agreed in writing changeover is to occur in the car park of Suburb B Hungry Jack’s.
OVERSEAS TRAVEL
8.Pursuant to s65Y, should either the Mother or the Father wish to travel outside of the Commonwealth of Australia with the children, they will, no less than 90 days prior to the intended departure date) notify the other parent in writing of the following:
8.1 Proposed destination of travel;
8.2 Proposed departure date;
8.3 Proposed return date;8.4Details of all flights (or other means of transport) including company and copy of tickets;
8.5An itinerary of where the children will be staying and the names and contact details for any other persons attending;
8.6 Contact details of all accommodation;
8.7Proof of travel insurance including medical and medivac cover for the children including evidence that the other parent has been nominated as a beneficiary under the insurance policy.
9.Upon the provision of the information pursuant to Order 10, the other parent will consent to such travel arrangements provided that:
9.1The Department of Foreign Affairs and trade does not advise against travel to the planned destination;
9.2The parent seeking to travel with the children will be in attendance for the duration of the planned travel;
9.3Travel occurs during the children’s time with the travelling parent without impacting on the non-travelling parents time with the children unless otherwise agreed in writing between the parties.
10.Unless otherwise agreed in writing the parents may travel with the children outside the Commonwealth of Australia for up to 21 days no more than one time per calendar year.
11.Unless agreed between the parties, any such overseas travel is to occur during the school holiday periods during their designated time pursuant to these Orders;
NOTIFICATIONS & AUTHORITIES
12.The mother and the father will forthwith notify the other of any significant illness or injury suffered by the children that requires medical treatment or hospitalisation, while the children are in their care, and include details of such illness, injury, medical treatment, or hospitalisation to the other parent.
13.The mother and the father will each notify the other parent of any medical or allied health appointment made for the children by notifying the other in writing by SMS or email.
14.These orders shall be taken as sufficient authority for the children’s school or school authority to authorise the provision of information to the mother and the father, at the requesting parents expense about the children including, but not limited to:
14.1 School reports;
14.2 Event notifications;
14.3 Newsletters;
14.4 Invitations;
14.5 Circulars;
14.6 Photograph order forms;14.7Notices of any kind.
15.These Orders shall be taken as sufficient authority for the children’s treating medical practitioners or allied health workers to authorise such professional to provide information to the mother or father at the requesting parents expense about the children including but not limited to:
15.1 Details of treatment;
15.2 Copies of referrals;
15.3 Details of any prescribed medications;15.4Any other information.
16.The Mother and the Father are liberty to liaise directly with the childrens treating medical specialists, practitioners and allied health workers, schools, extra-curricular and sporting bodies and are authorised to attend at any of the following that allow for parental attendance:
16.1 Meetings;
16.2 Interviews;
16.3 Consultations;
16.4 Appointments;
16.5 Sports training and match games;16.6Schooling, social, sporting, extra-curricular, cultural and other events.
17.Within 24 hours from the date of these orders, the mother and the father will each provide the other their residential address and contact mobile telephone number and email address to the other and advise the other parent of any change to same as follows:
18.Within 24 hours of any unplanned change occurring to their residential address or contact mobile telephone number or email address;
19.Not less than 48 hours prior to any planned change to their contact mobile telephone number or email address;
20. Not less than 14 days prior to any planned change occurring to their residential address.
21. [Intentionally left blank]
NOTATIONS
A.The Parties agree that the Father will do all acts and things to ensure that W undertakes counselling in the event that W agrees to do so.
B.The Court notes that W has previously engaged in counselling which was ceased due to W not being willing to engage in such therapy.
C.That the Mother and the Father use their best endeavours to encourage W to spend time with the Mother at least once per fortnight either in person or by electronic means.
EX TEMPORE REASONS FOR JUDGMENT
Smith J:
These are oral reasons for decision for parenting orders in a proceeding which was listed before me for a three-day final hearing, commencing this morning.
The parties and the Independent Children's Lawyer (‘ICL’) narrowed almost all of the issues down, and ultimately, the issue for decision by me is what orders should be made in respect of one of the children, W, and what orders will best facilitate the process of her rebuilding her relationship with her mother.
The short facts are as follows. The children in the proceedings are W, born 2009; X, born 2012, who is aged 10; and the twins, Y and Z, born 2016, now aged six. The applicant mother is Ms Hawkins, who is aged 38, and the respondent father, Mr Hawkins, who is aged 35.
The parties met in 2007 and began co-habiting in the same year. They married in 2010 and separated on 4 January 2020, following a most unfortunate argument.
I have before me primarily the mother's trial affidavit, the father's trial affidavit, each parties' notice of risk and the family report dated 12 November 2021, of Ms C.
I have not read or taken into account the paternal grandfather's affidavit.
The parties have worked very hard to rebuild what was a significantly fractured co-parenting relationship after what was clearly an extremely difficult time for everyone. The parties cannot be congratulated too highly for having put their hurt emotions behind them and for having focused on the wellbeing of their children.
They have managed to progress from no, or at best fraught, communication, noting as the expert did at paragraph 70 of her family report that there was no communication between the parents in the context of an AVO, and they now have a situation where they are able to sit in a room and communicate, where they have free flowing text and telephone communications about the children, and they are able to liaise about the inevitable issues that arise when a child leaves a bag behind, for example.
They are now able to work together as co-parents, and I think it is worth saying again that they cannot be too highly praised for having shown the maturity and the child-focus necessary to do this. Much of this Court's time is spent with people who just cannot put the children first and cannot manage their own emotions and overcome what are, without any doubt, very difficult circumstances.
It is in this context that the parents seek orders for equal shared parental responsibility. That order is supported by the expert at 144 of her report and by the ICL, and I am satisfied that whilst the previous relationship was fractured, the parents have worked very hard to re‑establish their ability to co-parent, that it is therefore in the best interests of the children that they do so, and that equal shared parental responsibility is the appropriate order to make.
The parties also agree that X and the twins should gradually increase time with the mother across December and commence a "week about" arrangement from 30 December 2022.
At the commencement of the case, the ICL expressed some concerns about the "week about" arrangement, particularly for the twins, given their ages, and I must say in most cases I would be reluctant to make "week about" orders for such young children.
However, the parents propose it and ultimately, the ICL did not oppose this order, and indeed, I note that in this case, in her report the expert had recommended it, for reasons which I need not go into. The simple fact is that each child is unique, each family is unique and each case must be assessed on its own facts. There are very few cases in which there is an ideal or perfect arrangement. The Court and the parties and the ICL need to consider the competing risks and benefits to each particular possible order for each particular child, or for different children.
Overall, having considered the various factors, although it is a somewhat unusual order, I am satisfied that this agreement between the parties is also in the children's best interests, and I will make this order. I again note that in reaching that conclusion, I have taken into account the significantly improved co-parenting relationship of the parties.
I note that the parents have also come to consent positions around special occasions, including birthdays, Mother's and Father's Day, Christmas and Easter, which all seem appropriate to me. They have also reached agreement as to mutual constraints about the use of alcohol and illicit substances, which I will make. They have an agreed changeover process when not at the school, an agreement as to overseas travel, special occasions and authorities. These are all agreed to by the ICL and not opposed, and I will make them.
There is also an agreed notations, ‘A’ and ‘B’, that the father will try and get W to go to counselling. She has been taken, but she has refused to engage. I think that those are appropriate notations to make.
Now, the parents, the ICL, the expert and I all agree that it would be in W's best interests to fix her broken relationship with her mother. Unfortunately, at 13, W's entrenched, intransigent views have more effective force in the real world than all of ours put together.
Now, I note what the expert said about W, in particular at paragraph105, 130 and 137 of her report:
105. … [W] has consistently refused to spend time with the mother, listing several reasons why including the boyfriend and reports that the mother makes her do everything. [W] is also reported to blame the mother for the parent's separation and got the father in trouble with police because of what she told them. This would seem to be a view that would only be held and perpetuated by the paternal family.
…
130. … [W] made it very clear saying that she did not want to spend time with her mother however, [X] looked upset as if he was about to cry when [W] said this. Whilst [W] stared down the camera, [X] looked quite uncomfortable with his sister's forthrightness. He looked at her and then when asked by the Family Consultant he said that he is currently spending enough time with the mother. Given his facial expression and his look of discomfort it did not seem to fit with his words or with what [W] had said. This was more evident when the twins were asked, and they both chimed together that they wanted to spend more time with their mother and said they missed their mum. [X] appeared to give a small nod to his younger sisters' views but as he was sitting between the twins and [W], he looked both confused and immobilised. [W] said she did not know why she did not want to see her mother, she just did not. [W] reported that she was made to do everything for the twins and did not want to.
…
137. … [W]'s intolerance and outspoken views have been harnessed by the father to support his decision in retaining the children and oust the mother from the marital home. Given [W]'s diagnosis of ADHD and suspected autistic characteristics it could be reasonably expected that she would not have accepted the parent's separation, is angered by the changes that this has brought, and would not tolerate either parent having a new partner. Her black and white views of the situation are not uncommon either for her age, or given her diagnostic description, however, it docs seem unwise that her opinion has been permitted to dictate parenting arrangements and influence her siblings' views without guidance or challenge. Both parents reported that [W] is intolerant, and unable to cope with change, and for a child, the separation of parents could not produce a greater change in their life. It is suspected by this Family Consultant that she is either being overtly or covertly encouraged to express her grief and sadness regarding her parent's demise as anger, which is directed at the mother. It is unfair that the father and grandparents have chosen to involve the children in the conflict in this way. There was a strong sense that the children are confused about what has happened and who is telling the truth, and there is pressure on them by the paternal family to take sides.
Given the great work the parents have done to put the past behind them, and noting that it is not going to help resolve the issue I have to determine, I do not think it is necessary to try and determine the reasons for W's intransigence and her refusal to spend time with the mother. Since it will not be helpful, I will not go into it.
W is just 13. That is the point at which most of us seem to think we know more than at any other stage of our life. There are also the factors of her ADHD, her black and white thinking, and her strongly expressed views to date. However, she recently told the ICL that while she still holds that view she could see herself speaking with the mother at some time in the future.
The question, therefore, is are we more likely to get the desired result with a carrot, a stick, or a combination of both? The parents' consent position, which is at – their consent order is MFI7 at 3:
3.The child [W] spend time with the Mother as agreed and arranged between the Mother and [W].
Now, that order is buttressed with a proposed order 21 that within 14 days of the father, and if necessary W, obtaining a negative rapid antigen test for COVID-19, noting that the father is with us today by video since he has COVID-19, that the father and the mother meet with the ICL and with the child W for the ICL to explain the orders to W and for the mother and father to express to W they both wish for W to spend time with the mother. There is also a notation ‘C’, that the mother and father use their best endeavours to engage and encourage W to spend time with the mother at least once per fortnight, either in person or by electronic means.
The ICL quite rightly has congratulated the parties on their great works. On this issue, however, the ICL has a different position, as set out in the ICL's proposed amendments to the parties' consent orders, which is MFI8.
The proposal at order 3 in the ICL's paper is that W shall spend time with the mother as agreed between the parties, however, failing agreement, at least once per fortnight from the conclusion of school or 3 pm Friday until the commencement of school on the following Monday, or 9 am Monday if not a school term, with such time to commence at a time to be ordered by the Court, and the potential difficulty of contravention if W refuses is said to be dealt with by the ICL's notation proposal ‘D’, that the parties accept and understand that the child W is at an age and a level of maturity that her wishes need to be given careful consideration when giving effect to these orders.
The expert was called and cross-examined as to the risks and benefits of each option, and gave evidence which was supportive in some respects of each option, although overall, she said that if persuasion worked by W seeing the parents co-parenting and seeing the other children developing a relationship with the mother, and seeing the parties meet at changeovers, and knowing that both of her parents want her to spend time with the mother, that would be the best option. The difficulty, of course, is that to some extent that answer assumes that that is going to happen, and the question is what happens if it does not?
The ICL's position is that W is too young to have to deal with the stress of selecting what if any time she is to spend with the mother, particularly in the context of all the troubles that have come before, and that clear orders as to the expectations will better assist her, and is more likely to lead to the desired result.
Now, in my view, both of these are reasonable positions. Both proposals have risks. The parents' proposal has a risk that W will feel she cannot change her position now, or else that she does not know what time to ask for. The ICL's position has the risk that perhaps W wants to bend but feels she cannot give in when she is being pushed.
The problem is that neither the expert, nor the parents, nor the ICL or I can say with any certainty what W's response is going to be.
Although it is a relatively simple issue, I note that I am bound by certain legal principles in coming to my conclusion. Each party or both the parties and the ICL seek parenting orders as defined in part 7 division 5 of the Family Law Act 1975 (Cth) (‘the Act’) and I note section 64B and my power under section 65D. The paramount considerations are what is in W's best interests, and that is section 60CA and section 65AA. The primary considerations are as set out in section 60CC(2): first and foremost the need to protect W, and second, the benefit to W of having a meaningful relationship with both parents.
There are a plethora of additional considerations. However, I note what was said in the Full Court in Banks & Banks [2015] FAMCAFC 36, at 48 to 50. In effect, the parties and the ICL determined the issues which I need to consider.
As I have said, I consider both the ICL's and the parents' positions entirely reasonable.
Ultimately, while I am attracted by the ICL's submission and the desire to create orders that make sure that W spends time with her mother, and does not realise in five or seven years time that she has hurt herself because she was young and just could not bear to be seen to give in, I am also very aware of the risk that, at 13, she will take the view that she is not going to be told what to do, and that the apparent willingness to consider change, which it seems she showed both to the expert and to the ICL, might give way to her feeling the need to show that she will not be told what to do.
I am not confident that it is possible to say what is going to happen.
On balance, I think it is appropriate to give the most weight to the parent’s views. The parents have agreed to equal shared parental responsibility, their co-parenting relationship is being re-built, they are doing changeovers, they are going to be co-parenting other children, and W will see that. At the end of the day, as the people who will be responsible for the legal responsibility to parent W, and probably as the people who know W best in all the world, they have both formed the view that the best way to get W to re-engage with the mother is the "softly, softly" approach, rather than by telling W this is what the Court says and she has to do it.
Giving weight to the parent’s views, and with respect to the ICL, whose position I consider entirely reasonable, I am persuaded to make the orders as proposed by the parties.
I will add my own encouragement, with a notation which I will ask the ICL to convey to W when she meets her with the parents, in the hope that W may place some small weight on my views.
Those are my reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 15 December 2022
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