Hendricks & Hendricks
[2022] FedCFamC2F 701
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hendricks & Hendricks [2022] FedCFamC2F 701
File number(s): PAC 6664 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – interim parenting – best interests of child – Orders made Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 69ZL Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 108 Date of last submission/s: 20 May 2022 Date of hearing: 16 December 2021, 4 February 2022, 26 April 2022 and 20 May 2022 Place: Parramatta Solicitor for the Applicant: Ms Soden, Soden Legal Solicitor for the Respondent: Mr Maitz, Stephen Maitz & Associates Solicitor for the Independent Children’s Lawyer: Ms Court, John Spence & Associates ORDERS
PAC 6664 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HENDRICKS
Applicant
AND: MR HENDRICKS
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 MAY 2022
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That all previous Orders of the Local Court of New South Wales at Town B made on 24 April 2017 be discharged.
2.That Order 3 of the previous Orders of the Federal Circuit and Family Court of Australia (Division 2) at Parramatta made on 9 November 2021 be discharged.
3.That the parties have equal shared parental responsibility for the child of the relationship, X (“the child”) born in 2011.
4.The child shall live with the Mother.
5.The child shall spend time with the Father, commencing Friday 3 June 2022, as follows:
(a)During school terms, in week one, from Friday after school to Monday before school, and in week two, from Tuesday after school to before school Friday;
(b)During school holidays, for one half of each short school holiday period (terms 1, 2 and 3) as agreed between the parties in writing, or in the absence of agreement, the first half commencing 3:45 PM on the Friday of the last week of term and ending at 3:45 PM on the middle day of those holidays;
(c)During the Christmas holiday break, half of that period as agreed between the parties in writing, or in the absence of agreement on a week about basis commencing with the mother at 3:45 PM on the Friday of the last week of term;
(d)On the weekend that includes Father’s Day from 5.00pm on the Saturday immediately before Father’s Day until 5.00pm on Father’s Day;
(e)On Christmas Day in each year from 10 AM on Christmas Day until 10 AM on Boxing Day;
(f)From 10 AM on Easter Saturday until 10 AM on Easter Sunday in each year; and
(g)At any other times as agreed between the parents in writing.
6.The Father’s time with the child in accordance with Order 5 is suspended as follows:
(a)On the weekend that includes Mother’s Day from 5.00pm on the Saturday immediately before Mother’s Day until 5.00pm on Mother’s Day;
(b)From 10 AM on Christmas Eve until 10 AM on Christmas Day;
(c)From 10 AM on Easter Sunday until 10 AM on Easter Monday.
On the child’s birthday
7.Notwithstanding any other Order, the parents shall spend time with the child on the child’s birthday as agreed between the parents in writing and failing agreement as follows:
(a)On a school day with the parent in whose care he would not otherwise be living with or spending time with from the conclusion of school (or 3.00pm if the child is not attending school on that day) until 7.00pm;
(b)On a non-school day with the parent in whose care he would not otherwise be living with or spending time with for not less than six (6) hours as may be agreed between the parents in writing but where no agreement is reached from 9.00am until 3.00pm.
On the parent’s birthday
8.Notwithstanding any other Order, where the child is otherwise not spending time with the Mother or the Father on their birthday then the child shall spend time with the birthday parent as agreed between the parents in writing and failing agreement as follows:
(a)Where the birthday falls on a school day, from the conclusion of school (or 3.00pm if the child is not attending school on that day) until 7.00pm;
(b)Where not a school day then from 4.00pm on the parent’s birthday until 4.00pm the immediately following day or before commencement of school if the following day is a school day.
Changeover
9.Where changeover coincides with the commencement or conclusion of school, the parent who is commencing time with the child is responsible for collection of the child from school, and otherwise changeover shall occur at the Mother’s usual place of residence at the commencement of the Father’s time with the child and the Father’s usual place of residence at the conclusion of the Father’s time with the child.
Communication
10.That unless otherwise agreed between the parties, parties shall communicate primarily with each other via sms text message unless in case of an emergency.
11.The child is permitted to communicate with each parent at all reasonable times and where the child requests such communication to occur, the parent with whom the child is spending time is to facilitate telephone/video communication between the parent and the child.
12.That the parties shall ensure that the child is afforded privacy when speaking with the other parent.
13.Both parents shall ensure that they communicate in a polite and businesslike manner and shall behave respectfully towards each other at any time that they are in the presence or hearing of the child.
Parenting Courses
14.That within fourteen (14) days from the date of these Orders both parties shall enrol to attend a multi-session therapeutic parenting programs such as Keeping Contact and shall complete the program at the first available opportunity offered by the course provider and provide a copy of the certificate of completion to the other party’s solicitor within fourteen (14) days of the same becoming available.
15.That within fourteen (14) days from the date of these Orders the Father shall enrol to attend a course such as Tuning into Teens or similar course parenting course which identifies alternate discipline strategies and shall complete the course at the first available opportunity offered by the course provider and provide a copy of the certificate of completion to the Mother’s solicitor within fourteen (14) days of the same becoming available.
16.The parties shall not be required to comply with the above Orders relating to Parenting Courses if they have already completed such courses referred to in those Orders.
General Orders
17.In the event the child suffers a medical emergency requiring medical attention while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
18.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the child’s medical practitioner and all health care providers are authorised and directed to communicate with, and provide information and copies of documents to, the Mother and the Father upon either parent’s respective request and at the requesting parent’s own cost (including as to treatment obtained, required, prognosis, medication and test results).
19.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the principal of the child’s school (and each teacher involved in the education of each child) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.
20.The parents keep each other advised of their current residential address and current phone numbers and that each parent provide to the other details of any proposed change to either their address or their telephone number in writing at least one (1) week in advance of the same.
21.The parents are permitted to provide a copy of these Orders to the child’s school or place of care that the child attends and any therapist or counsellor involved in treating the child from time to time.
22.Each party is restrained from changing the child’s school that he attends upon unless otherwise agreed between the parents in writing.
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 Hendricks & Hendricks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
In this matter of Hendricks, the Court now hands down its reasons for judgment in relation to an interim hearing held on 16 December 2021, 26 April 2022, and 20 May 2022.
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (the Act).
The subject child is X, born in 2011.
On 9 November 2021, the Court having made a recovery Order in relation to the child, that is, ordering the Mother return the child to the Father’s primary care, directed that proceedings be listed for interim hearing on 16 December 2021, the particular issues being the extent of the child’s time with the Father, including the issue of weekend time with the Father.
On 16 December 2021, by consent, interim parenting Orders were made, inter alia, that the child commence therapy with a psychologist, and that the child spend certain defined time with each parent during the Christmas 2021/January 2022 school holidays and which included the child spending week about time with the parties. The interim parenting hearing was adjourned to 4 February 2022.
The Father’s proposed interim parenting orders are set out in his Case Outline filed 24 April 2022 in which he seeks interim orders inter alia that the child live with the Father; the child spent time with the Mother, during school terms in week one, from after school Wednesday until before school Friday, and in week two, from after-school Thursday until 9 AM Monday (such time with the Mother represents in the aggregate some 6 nights each fortnight during school terms); and an equal sharing of school holidays. The ICL supports such proposed Orders, as indicated by the ICL to the Court on 20 May 2022.
The Mother’s proposed interim parenting orders are set out in her Case Outline dated 25 April 2022 and prepared by counsel for the Mother. Inter alia, the Mother seeks orders that the child live with her; that the child spend time with the Father as agreed between the parents in writing, and failing agreement, inter alia, during school terms each Monday after school until Thursday before school; and an equal sharing of school holidays. Effectively, the Mother seeks the continuation of the Court’s interim parenting Orders of 9 November 2021, inter alia, in relation to the child’s time with the Father during school terms-inter alia, 3 nights each week. These proposed interim parenting orders would result in the child not spending weekend time with the Father during school terms. These proposed interim parenting orders would also result in the continuation, pursuant to the Court’s Orders of 9 November 2021, that the child spend time with the Mother during school terms from after-school Thursday to before school Monday of each week. In the alternate, the Mother proposed, inter alia, that the child spend school term-time time with the Father each alternate week from after school Friday to before school Monday (see the Mother’s “Alternate Minute of Order Interim Hearing 20 May 2022” emailed to the Court on 20 May 2022 at 12.08pm).
The documents relied upon by the Father are set out on page 1 of his Case outline filed 24 April 2022:
(a)Affidavit of Ms C filed 9 February 2021;
(b)Affidavit of Ms D filed 11 February 2021;
(c)Affidavit of Mr Hendricks filed 13 February 2021;
(d)Affidavit of Ms F filed 27 January 2022;
(e)Affidavit of Mr Hendricks filed 22 April 2022.
The documents relied upon by the Mother are set out on page 1 of her Case outline dated 25 April 2022:
(a)Response to Application in a Case filed 5 November 2021;
(b)Notice of Risk of Abuse filed 5 November 2021;
(c)Affidavit of Ms Hendricks filed 14 December 2021;
(d)Affidavit of Ms Hendricks filed 3 February 2022;
(e)Affidavit of Ms Hendricks filed 22 April 2022;
(f)Affidavit of Ms G filed 27 August 2021;
(g)Child Inclusive Conference Memorandum dated 15 March 2021;
(h)Child Impact Report dated 15 December 2021;
(i)Mother’s Tender Bundle.
The ICL relied upon her Case outline dated 16 December 2021 and the documents set out on page 1 of that Case Outline:
(a)Child Impact report dated 15 December 2021;
(b)Orders dated 9 November 2021.
The exhibits at the interim hearing were:
(a)Exhibit A: Child Impact Report dated 15 December 2021;
(b)Exhibit B: Anger Management Course Certificate of the Father;
(c)Exhibit C: Mother’s Tender Bundle (4 PAGES);
(d)Exhibit D: Notice to Produce & USB;
(e)Exhibit E: Two video recordings tendered by way of email;
(f)Exhibit F: Child Inclusive Conference Memorandum dated 15 March 2021;
(g)Exhibit G: Mother’s Parenting Course Certificate;
(h)Exhibit H: USB of Video dated 22 July 2019;
(i)Exhibit I: Section 69ZW DCJ documents (44 pages).
EVIDENCE
The Court does not propose to set out the entirety of the parties’ Affidavit material.
The Parties’ Allegations
In the Affidavit of Ms G filed 27 August 2021 (filed through the Mother’s solicitors), Ms Hendricks refers to being the eldest daughter of the Father, with her late biological mother being Ms H. Ms Hendricks alleges, inter alia, that when she was a young child the Father punished her excessively, and was excessively controlling of her with her life routines. She alleges that the Father used excessive force when punishing the child for misbehaving. She alleges that her one full sibling, Ms D, has a good relationship with the Father.
In the Mother’s Affidavit filed 14 December 2021, she alleges, inter alia, that during the parties’ relationship the Father was controlling and verbally abusive towards herself and the parties’ children from previous relationships, including the child. She alleges that the Father had dragged his daughter Ms G up the hallway by her hair as a disciplinary measure.
The Mother alleges that in late 2021 the child had told her that the Father was yelling at him, recording him when he was upset, smacking him and carrying him to his room, and that the child was scared.
The Mother alleges that in late 2021 the child told her that the Father kept hounding him to say things that were not true in relation to the Mother.
The Mother alleges that on 1 November 2021, shortly after the Father collected the child from the Mother’s house to take him to school, she received a message from the Father stating that the child was in a shocking mood, screaming at him and being violent.
The Mother refers to the Father’s Affidavit of 7 November 2021 wherein the Father confirmed that he had been recording the child.
The Mother alleges that the child, in early November 2021, was telling the Mother he didn’t want to attend school, and he did not want to return to the Father’s home because he was scared.
The Mother states that she lives in Suburb J being about a five minute drive from the Father’s residence in Suburb K. The Mother states the child is happy at his school.
The Mother’s Affidavit filed 3 February 2022, she alleges, inter alia, her concern that the Father had coerced the child into writing a letter, being Annexure A to the Father’s Affidavit filed 27 January 2022, in which the child allegedly stated that the Mother was telling him to tell lies to other people; that the Mother always tells the child bad stuff about the Father, including the Father hitting everyone; and that the Father is a liar.
In the Mother’s Affidavit filed 22 April 2022, she alleges, inter alia, that the child informed her that over Christmas the Father and his partner were yelling at him. The Mother alleges that on New Year’s Day 2020 the child told her that he hated going to his father’s home. The Mother alleges that the child told her that he was arguing with the Father on 7 January 2022. The Mother states that she called the police to do welfare check on the child. This welfare check was conducted by the police and they told the Mother that the child seemed calm and had no injuries. The Mother states her deep regret at contacting the police.
The Mother alleges that the child was absent from school on about 2 February 22 and that the school portal reflected his absence being reported by the Father as the child being overwhelmed. The Mother alleges that on 21 February 22 she received a call from the child’s school informing her that the child had been very distressed at school. The Mother alleges that the child had told the staff member that he had been in an argument with the Father the Thursday prior whereby the Father yelled at him and grabbed him. The child allegedly was worried that the Father would continue to yell at him if he returned to the house of the Father. Later, after the Mother picked up the child from school, the child allegedly told the Mother that there had previously had an argument with the Father over his mobile phone that the Father had yelled at him and grabbed him.
The Mother alleges that on 24 February 2022 she received a call from the child’s school and was informed that on the previous day the child was allegedly overheard speaking to his friends stating he was going to kill himself. The teacher immediately pulled the child aside and asked if the child was serious about making that comment or whether he was joking to his friends. The Mother was told that the child neither confirmed nor denied the questions of the teacher and the teacher had described the child’s attitude as indifferent. The Mother states that on 24 February 2022 she collected the child from school and he appeared settled and well. He stated that the child’s behaviour did not reflect that he was in any distress.
The Mother alleges that on 27 February 22 the police attended her residence to conduct a mandatory check on the child following reports made in relation to the child’s well-being. The police welfare check was uneventful.
The Mother alleges that on 12 April 2020 her solicitor received correspondence from the Father’s solicitor which alleges that the Mother had allowed the child to assemble and press fireworks and that the child is exposed to explosives. The Mother denied these allegations.
The Mother refers to an email message of 26 March 2022 from the child’s psychologist, Ms L, inter alia, stating that the child had engaged well “today” and that the child has built rapport well and is a pleasure to work with. The email refers to exploration of the child’s interpersonal connections with those within his home and school life.
The Affidavit of Ms D filed 13 February 21 alleges, inter alia, that the Mother had made negative slanderous comments about the Father in front of the child on 26 January 2020.
The Father’s Affidavit filed 22 April 2022, states, inter alia, that on 10 August 2021 the child allegedly told the Father that the Mother had told him the Father used to hurt the Mother’s child from a previous relationship, M, and that the Father had taught the Mother how to hurt that same child too. The child allegedly told the Father that he was worried that the Father was going to hurt him as well. The Father alleges that on 23 August 2021 the child was agitated and told the Father that the Mother had told him that the Father used to hurt the Mother. The Father alleges that the child then asked the Father to punch him in the face and giving a black eye. The child allegedly told the Father that the Mother had said that if the Father punched the child then she could tell the Court. Two days later the Father alleges the child sought to retract his aforesaid statement relating to the Mother, having allegedly had a further discussion with the Mother wherein the Mother told the child that she had not stated to him anything about punching.
The Father alleges that on 7 September 2021 the child told him, inter alia, that he did not know what he was saying or why he was saying it.
The Father alleges that on 1 November 2021 the child became upset when the Father asked him if he had had enough food and drink for school. The child started punching and kicking the Father. Later, after school, the child allegedly told the Father that the Mother had given the child the idea of telling his school teacher that the Father had hurt him. The Mother then retained the child and allegedly made a police report that the Father had assaulted the child, which led the Father to institute recovery proceedings.
The Father alleges that during the 2021 Christmas holidays his experience is with the child over the holidays span a range of emotions and feelings; there were times when the child was ecstatic and there were times when he was sad, including clinging to the Father with a hug that he wanted to never end. The Father also alleged that there were times when the child is upset when he felt that things were unfair.
The Father alleges that on about 7 January 2022 the police attended his house and informed him that the Mother had called them. He alleges that he and the child were interviewed by the police that morning.
The Father alleges that on 22 February 2022 he spoke to the child’s school and told them that he had not raised his voice at the child or grabbed the child around the waist the previous Thursday.
The Affidavit of the Father’s partner, Ms F filed 27 January 2022, alleges, inter alia, that in 2021 the child told her that he must tell the Mother everything that happens at the Father’s house, particularly anything bad that happens. She alleges that she regularly sees the child and the Father spending quality time together including seeing them having a morning hug with the child often initiating the hug. She alleges that the child can become very aggressive, and that that would usually happen on a Monday or Tuesday after being at the Mother’s house.
Child Inclusive Conference Memorandum dated 15 March 2021
At this interim hearing, the Court takes into account the contents of the Child Inclusive Conference Memorandum dated 15 March 2021 whilst acknowledging that that Memorandum is untested at this interim stage.
The family consultant noted that at the conference on 10 March 2021, the Mother’s application proposed that the child live with the Mother, and for the child to spend alternate weekends from Friday afternoon until Monday morning with the Father, and on alternate Wednesday afternoons.
At the above conference on 10 March 2021, the Mother alleged, historically, that she had been physically assaulted by the Father on two occasions. She alleged certain controlling behaviour of the Father. The Mother acknowledged to the family consultant that in a state of alleged frustration she had thrown some things at the Father. The Father alleged the Mother was at times verbally abusive towards him in the presence of the children. He alleged certain controlling behaviour of the Mother. The family consultant noted no ADVOs had been made between the parents.
The Mother told the family consultant of her concerns about the child’s emotional wellbeing with the Father. She alleged that the Father does not listen to or try to understand the child’s feelings or views, however she reported that since she initiated Court proceedings, the child has been speaking more positively of the Father. The Mother stated that child has told her that the Father is letting him share his opinions and views and is being less punitive.
The Mother told the family consultant that the parties’ co-parenting relationship was changeable and depended on the Father’s views. She said that there had been times when the parents have had a good, communicative co-parenting relationship. The Father told the family consultant that the communication between the parents was almost non-existent.
The family consultant stated that it would appear that the most recent rupture in the co-parenting relationship corresponds with the Father’s moving home and the child needing to change schools.
The family consultant interviewed the child. He presented as a polite, friendly child and introduced himself confidently. He said that his preference was to spend an additional night per week with the Mother so that he spends time with her from Thursday after school until Monday before school. He said that he would like the Mother to be more involved in school drop-offs and pick-ups and that the four nights away from her is too long.
The child described to the family consultant a positive relationship with the Mother. He described his relationship with the Father in mixed terms. He said that he used to enjoy going rock-climbing with the Father but after they moved home they stopped doing this activity. He said that the Father yells at him and makes him feel scared. He said that he also feels confused because the Father will be angry with him even though he has done what the Father had expected. However, he said that more recently, the Father has been less angry and not yelling at him as often. (The Court would observe that this statement by the child would appear to be consistent with the Mother’s report to the family consultant that the child had told her that the Father is letting him share his opinions and views and was being less punitive).
The child told the family consultant that sometimes he feels worried when his parents are together because he sometimes anticipates that they will have a fight and he will feel as though he is in the middle.
The child describes school positively, stating that since he has commenced at his current school he has made some good friends and says that he enjoys learning.
The Mother told the family consultant that the child has told her that he would like to spend more time with her, including her being able to take him to school.
The Mother told the family consultant that she thinks the relationship between the Father and the child is strained because the Father is strict, has difficulty recognising and responding to the child’s emotional needs and that by the child spending decreased time with the Father, their relationship may improve as it will not be so intense for the child.
The Father reported to the family consultant that the child has told him that he would like to have some weekend time with each parent, as well as the Mother picking him up from school sometimes.
The family consultant stated that the child is likely to benefit if he can continue to maintain a meaningful relationship with each parent and this may be facilitated by him continuing to spend significant time with each parent.
The family consultant stated inter alia at paragraph 44 of her Memorandum that it was not clear what the benefits are to the child by having the Father picking up from the Mother’s home and taking him to school, rather than the Mother taking the child directly to school when he is spending time with her. She stated that given the current conflict within the co-parenting arrangements, it was also likely to be beneficial to reduce the number of transitions the child was required to undergo between his parents’ care.
At paragraph 45 of the Memorandum, the family consultant stated, inter alia, that it may be the parties have different parenting styles. She stated it may be of benefit to the child if they can bring more alignment to their parenting style as this will likely reduce the possibility of the child having to re-orient to each parents’ style each time he transitions between their care. She stated that completing a post-separation parenting program such as Parenting After Separation or Keeping Kids in Mind may be of assistance.
Child Impact Report dated 15 December 2021
The Court takes into account the contents of this report whilst acknowledging that it is untested at this interim stage.
The family consultant stated that the interviews for the report occurred in early December 2021.
The family consultant noted that the child lives with the Mother 4 nights each week.
The family consultant stated the child presented as a happy, articulate and talkative child whose manner and appearance was consistent with his chronological age.
The child stated that the Father moved to Suburb K which resulted in a change of school.
When asked about the Father, the child described him as very strict. He said that the Father was inflexible about changing rules. He said that he does not like the Father’s approach with rules and that whilst he does not want the Father to let him run free he would like a bit more freedom. He said the Father would yell at him for inconsequential reasons. He said that in contrast whilst the Mother has ruled she would sometimes let stuff slide. He described bedtimes as a point of difference between parenting styles. He said that the Mother just wants what he wants.
When talking about parenting proposals, the child stated that he likes the current arrangement.
The child was aware of the negative relationship between his parents.
Each party made family violence related allegations against the other to the family consultant.
The family consultant stated that the parties have differing parenting styles and this may be a source of ongoing conflict between them. The Mother had questioned the severity of the Father’s discipline style. The Mother also expressed concern, that despite being restrained from doing so, that the Father continues to yell at the child.
The family consultant stated that it would appear from the Father’s interview and the child’s interview that the Father places high standards and demands on the child in terms of behaviour, with strict rules and appear arbitrary. She stated that while it is not indicative of it not occurring, the child did not report any excessive physical discipline or timeouts from the Father. The family consultant stated that the child experiences this as difficult because he is unable to voice his own opinion to affect change. She stated that this style of parenting can undermine the child’s ability to think for themselves.
The family consultant stated that for both parents developing a middle ground parenting style that is in alignment with each other is likely to give the child the best outcome. She stated the children do cope with some differences in rules in each house but when the gap between them is wide this can be increasingly difficult for a child to navigate.
The family consultant stated that the Mother stated that she only contacts the Father when absolutely necessary. She said that before each court hearing the Father will send her numerous messages with accusations. The Father stated that from the time of attending the session with the post separation counselling communication between the parties has progressively worsened.
The family consultant stated that the parties do not have an effective coparenting relationship. She stated that it would appear that during the time that the child is spending time with each parent there have been ongoing incidence of conflict. She stated that the parties appear to disagree or have confusion over the child attending counselling.
The family consultant stated that the child was likely to benefit from maintaining a relationship with each parent. Each parent reported that the other was attempting to influence the child against the other. This was likely to have a negative effect on the child emotional well-being. The child impressed as mature and thoughtful. It would appear that the child was attempting to navigate his relationships with each parent and have good relationships with each of them. The family consultant stated that given this and the child’s clearly expressed views, it was recommended that some weight be given to the child’s views.
The family consultant stated that the Father appeared to be focused on perceived actions by the Mother in regards to influencing the child and further, her impact on him. The family consultant stated that blaming the other parent, rather than reflecting on his role in the ongoing conflict or his behaviour towards the child may limit the Father’s ability to change. The Father appeared to accept that his style of discipline was not accepted by others but did not appear to understand that other less punitive methods of discipline were preferred. The Father appeared to have difficulty in responding when the child acted out against him, again blaming the Mother’s influence. For the Father developing alternative discipline strategies that are child focused and not punitive are likely to have a positive impact on his relationship with the child.
The family consultant stated that the Mother appeared to be child focused and attuned to the child’s needs, including maintaining a relationship with the Father.
The family consultant stated that the child would benefit from having a positive relationship with each parent. Since separation the child had spent significant time with each parent. The child had stated that he wanted to continue with the current arrangement. Due to his age and likely development stage the family consultant stated that some weight could be given to the child’s views when determining parenting proposals.
The family consultant stated that the child was aware of the conflict between the parents and if this continues it is likely to impact his emotional and psychological well-being. She stated that the child may choose to align himself with one parent over the other to remove himself from the conflict or it could negatively affect his relationship with both parents. Completing a multi-session therapeutic parenting program, such as Keeping Contact may benefit the parents.
The family consultant stated that the child expressed difficulty with the discipline style employed by the Father. The child may be choosing to spend only weekdays with the Father to reduce the amount of time he spends with him due to school attendance. The Father may benefit from attending a course such as Tuning into Teens or a parenting course to identify alternative discipline strategies that allow the child to develop and grow in his autonomy. The family consultant stated that it was noted that the Father reported that he is attending similar programs and if they have yet to change his parenting style he may find further change difficult.
The family consultant recommended that a counsellor/psychologist be agreed-upon and that the child attends available appointments, regardless of which parent facilitates the appointment. The child was likely to benefit from having an independent outlet to discuss his feelings and any difficulties he is experiencing as he navigates moving into puberty and beyond.
The family consultant stated that the parties may benefit from attending mediation with the aim of finalising parenting arrangements, because this may reduce a significant source of conflict between them. Having certainty in parenting arrangements is also going to have a positive impact on the child’s well-being.
Exhibits
The Court has considered all the exhibits.
The Mother attended the course, Parenting After Separation: Focus on Kids in February/March 2022.
The Father completed an anger management course in April 2022 with 5 subjects being part of the course (for example one subject was, Responses to Anger Triggers”).
Consultation notes for the child at a doctor’s surgery on 1 November 2021 records both the Mother and child reporting the child has been hit by the Father. The child reported that the Father’s partner had hit him. He reported his back was a bit sore from them hitting him on his back with a hand.
Exhibit I was documents produced to the Court pursuant to a s 69ZW Order made on 18 May 2022; some 44 pages. There is a significant suggestion that numerous of the reported information to DCJ were made by the parties, when observing the similarity of the content of the reports with allegations in the parties’ Affidavits.
Page 14 of Exhibit I, there is a reference to DCJ telephoning the child’s school on 25 February 2022. There is a reference by DCJ then telephoning the Mother. The Mother appears to report that the child is not presenting distressed; that he has denied to the Mother that he had said he wanted to end his life, but rather it was a misunderstanding and a group of boys were saying that he was going to kill himself. The Mother questioned whether there was something more she could be doing. DCJ spoke to the Mother about keeping communication open, discussing with the child who he could tell if he did have these feelings, what he would do and how she would know. DCJ spoke to the Father who expressed his continuing concern that the child may take his own life. The Father was advised that if he continued to be worried that he could request a welfare check from police. The Father raised concerns that the psychologist employed for the child was biased and was going to side with the Mother. The DCJ records appear to indicate the police conducted a welfare check. DCJ records refer to case closure being recommended.
In relation to an “Engagement: …” start and end date 19 April 2022, DCJ records state, “Outcome: Case Closure, current competing priorities”. In this context, DCJ notes at page 42 state, inter alia, that the parties “are separated and as a result the child appears to be caught in the centre of a custody dispute. There is a pattern emerging in which allegations are being made by one parent or the other and vice versa. In prior ROSH reports (the child) was reported to be engaged with a private psychologist who will be able to navigate (the child’s) feelings around the separation and any adverse impact toward his mental health.”
The Court has considered all the material before it at this interim hearing, including the exhibits, together with the parties’ submissions.
The relevant principles in relation to parenting proceedings, including interim proceedings are well settled: see Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
In Marvel & Marvel (No. 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence. And in this regard, the Court refers to paragraphs 120, 122 and 123 of the decision in Marvel & Marvel.
Of this, the Full Court of the Family Court of Australia in Eaby & Speelman [2015] FamCAFC 104 [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36 (Banks), especially at paragraphs 46 to 52. In that decision, the Full Court stated inter alia that (at paragraph [49]): “It is also important to stress here that the requirements to “consider” each factor (under section 60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLB [2014] FLC 93-582.”
Further, it stated at paragraph [50]:
When it is obvious that the findings made is that some of the section 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.
Section 60B of the said Act sets out the objects of part 7 of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining orders in the child’s best interests, the Court must consider the matters set out in subsections 2 and 3, and in this regard, the Court refers to its above discussion of a decision in Banks.
The Father is aged almost 48 years; the Mother is aged 42 years.
As to the meaningful relationship primary consideration, the child has a meaningful relationship with both parents and will benefit from a continuation of those relationships.
Present interim parenting Orders do not provide for the child spending weekend time with the Father during school terms. There is a real prospect that should the child now begin to spend time with the Father, during school terms, inter alia, on fortnightly weekends, the child’s meaningful relationship with the Father can be enhanced.
The Court observes that the Mother’s “Alternate Minute of Order Interim Hearing 20 May 2022” provides for the child to spend time with the Father, on a fortnightly basis, during school terms, from after school Friday to before school Monday, representing some three nights each fortnight during school terms. Whilst this alternate proposal of the Mother would enable the Father to spend fortnightly weekend time with the child, it does represent a significant reduction in the child’s present three nights each week with the Father, albeit that such present time is spent during the school week. The Court is concerned that such proposed alternate Order by the Mother may adversely affect the child’s present meaningful relationship with the Father.
Accordingly, should the Court make interim Orders providing for the child to spend time with the Father, during school terms, in week one from Friday after school to Monday before school, and in week two from Tuesday after school to before school Friday, there is a real prospect that the child’s meaningful relationship with the Father can be both maintained and enhanced. Such Orders will, in the aggregate, equate to the child spending time with the Father for six nights each fortnight during school terms being equivalent to the six nights each fortnight that the child now spends with the Father during school terms.
The Court at this interim stage, is concerned not to destabilise in a significant way the child’s current, well-settled parenting arrangements (inter alia, providing for the child to spend time with the Father, in the aggregate, six nights each fortnight during school terms, and spend time with the Mother, in the aggregate, eight nights each fortnight during school terms), and is concerned not to adversely affect the child’s meaningful relationship with both parents.
The Court would give significant weight to this meaningful relationship primary consideration.
As to the need to protect primary consideration under section 60CC of the Act, there is a suggestion, on the material before the Court, that the child is significantly caught up in the parties’ parenting dispute in relation to him and he may be experiencing divided loyalties with his parents. There is a suggestion from such material that the parties are mistrustful of each other in relation to their respective parenting of the child and that they are both discussing aspects of the content of these parenting proceedings with the child when the child is spending time with each of them. There is a suggestion from such material that such discussions with the child may have occurred, at least in part, by reason of a parent’s desire to acquire information from the child which is potentially critical of the other parent’s parenting for use in the proceedings. There is a further suggestion from such material that these matters are causing the child significant confusion and emotional upheaval and which may be contributing to him exhibiting disruptive behaviour towards the Father with a view to extricating himself from the parties’ conflict.
Having said this, the Father’s apparent firmer parenting style may also be contributing to such behaviour, although the Court now observes that the Father has recently completed an anger management course and further, he would likely be aware of the family consultant’s concerns and comments (from the Child Impact Report) in relation such firmer parenting style. The Court will also make an Order, as sought by the Mother, that the Father complete a course such as Tuning into Teens or a similar parenting course which identifies alternate discipline strategies, however if the Father has already completed such a course he will not be required to complete such a course.
The Mother contends that there is material before the Court indicating that the Father, at least since the Court’s consent interim Orders of 16 December 2021, has continued to not only discuss the contents of these parenting proceedings with the child but inappropriately physically discipline the child and yell at the child, and that the child has experienced related emotional distress. For example, in addition to the Mother’s own allegations in her Affidavit material, the Mother points to aspects of the DCJ material in Exhibit I. The Father, in particular, makes significant denials in this context.
The Father, and the ICL, on the other hand, contend that the Mother has been seeking to influence the child against the Father and point to not only the Father’s allegations in his Affidavit material but also to aspects of the DCJ material in Exhibit I.
Referring to its discussion above under this need to protect primary consideration, the Court has a concern as to the reliability of the child’s alleged complaints to both parents and to his school. The Court refers to its previous recitation of aspects of the content of Exhibit I and observes that significant sections of the material in Exhibit I, DCJ material, relates to reports by third parties to DCJ officers. The Court’s above concern as to the reliability of the child’s alleged complaints emanates, in significant part, from the content of the Court’s discussions above under this need to protect primary consideration.
The Court is of the view that there will be no unacceptable risk of harm posed to the child, whether physically or psychologically, in spending unsupervised time with the Father, in particular during school terms, as discussed above under the meaningful relationship primary consideration (that is, during school terms in week one from Friday after school to Monday before school, and in week two from Tuesday after school to before school Friday).
The Court is of the view that there will be no unacceptable risk of harm posed to the child, whether physically or psychologically, in living with the Mother and spending time with her during holidays and other special occasions.
The Court again refers to the Court’s interim protective restraining Orders against both parties made on 9 November 2021. In particular, the Court has previously made interim restraining Orders against both parents on 9 November 2021 relating to, inter alia, the parents discussing any aspect of these parenting proceedings with the child. The Court expects both parties to obey such restraining Orders and not verbally engage with the child when the child seeks to engage them in discussing aspects of the content of these parenting proceedings. The Court further takes into account DCJ’s closure of its file in relation to the family, and uneventful police welfare checks of both families. The Court further takes into account that the child is attending counselling through N Psychology. Such counselling will also assist the child emotionally in relation to managing his position in relation to these parenting proceedings. And again, there is a real prospect that the child will enjoy fortnightly weekend time with the Father during school terms, in particular by reason of weekend time being less constrained by schooling obligations. The Court also takes into account the content of the family consultant’s Memorandum and the Child Impact Report, whilst acknowledging that they are untested at this interim stage.
As to the child’s views expressed to the family consultant for the Child Impact Report that he is content with the current parenting arrangements (which arrangements do not provide for the child spending time with the Father during school terms on weekends), whilst the Court takes this view into account, the Court refers to its discussion above under the meaningful relationship primary consideration in relation to the real prospect that the child’s meaningful relationship with the Father can be enhanced if spending fortnightly weekend time with him during school terms. There is a suggestion, on the material before the Court, that the child did spend some positive time with the Father, inter alia, during the January 2022 school holidays.
As to parental responsibility, the Mother seeks an order that the parties have equal shared parental responsibility for the child. The Father seeks an order that each party have responsibility jointly with the other in relation to the child’s long term care, welfare and development. It will be in the best interests of the child to make an order that the parties have equal shared parental responsibility for him.
At this interim stage, an order for equal time will not be in the child’s best interests; the parties’ coparenting relationship is not sufficiently optimal to enable an equal time parenting arrangement to succeed, the parties are mistrustful each other, and moreover imposing an equal time arrangement upon the child would potentially destabilise him in circumstances where he appears to have become accustomed to spending, at least during school terms, six nights each fortnight with the Father and eight nights each fortnight with the Mother. The Court’s proposed time to be spent between the child and the Father during school terms, together with the parties effectively sharing school holiday time with the child, will probably constitute substantial and significant time under the Act. Equal time and substantial and significant time regimes are probably reasonably practicable.
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child to make the following interim parenting orders and the Court makes such Orders:
1.That all previous Orders of the Local Court of New South Wales at Town B made on 24 April 2017 be discharged.
2.That Order 3 of the previous Orders of the Federal Circuit and Family Court of Australia (Division 2) at Parramatta made on 9 November 2021 be discharged.
3.That the parties have equal shared parental responsibility for the child of the relationship, X (“the child”) born in 2011.
4.The child shall live with the Mother.
5. The child shall spend time with the Father, commencing Friday 3 June 2022, as follows:
(a)During school terms, in week one, from Friday after school to Monday before school, and in week two, from Tuesday after school to before school Friday;
(b)During school holidays, for one half of each short school holiday period (terms 1, 2 and 3) as agreed between the parties in writing, or in the absence of agreement, the first half commencing 3:45 PM on the Friday of the last week of term and ending at 3:45 PM on the middle day of those holidays;
(c)During the Christmas holiday break, half of that period as agreed between the parties in writing, or in the absence of agreement on a week about basis commencing with the mother at 3:45 PM on the Friday of the last week of term;
(d)On the weekend that includes Father’s Day from 5.00pm on the Saturday immediately before Father’s Day until 5.00pm on Father’s Day;
(e)On Christmas Day in each year from 10 AM on Christmas Day until 10 AM on Boxing Day;
(f)From 10 AM on Easter Saturday until 10 AM on Easter Sunday in each year; and
(g)At any other times as agreed between the parents in writing.
6.The Father’s time with the child in accordance with Order 5 is suspended as follows:
(a)On the weekend that includes Mother’s Day from 5.00pm on the Saturday immediately before Mother’s Day until 5.00pm on Mother’s Day;
(b)From 10 AM on Christmas Eve until 10 AM on Christmas Day;
(c)From 10 AM on Easter Sunday until 10 AM on Easter Monday.
On the child’s birthday
7.Notwithstanding any other Order, the parents shall spend time with the child on the child’s birthday as agreed between the parents in writing and failing agreement as follows:
(a)On a school day with the parent in whose care he would not otherwise be living with or spending time with from the conclusion of school (or 3.00pm if the child is not attending school on that day) until 7.00pm;
(b)On a non-school day with the parent in whose care he would not otherwise be living with or spending time with for not less than six (6) hours as may be agreed between the parents in writing but where no agreement is reached from 9.00am until 3.00pm.
On the parent’s birthday
8.Notwithstanding any other Order, where the child is otherwise not spending time with the Mother or the Father on their birthday then the child shall spend time with the birthday parent as agreed between the parents in writing and failing agreement as follows:
(a)Where the birthday falls on a school day, from the conclusion of school (or 3.00pm if the child is not attending school on that day) until 7.00pm;
(b)Where not a school day then from 4.00pm on the parent’s birthday until 4.00pm the immediately following day or before commencement of school if the following day is a school day.
Changeover
9.Where changeover coincides with the commencement or conclusion of school, the parent who is commencing time with the child is responsible for collection of the child from school, and otherwise changeover shall occur at the Mother’s usual place of residence at the commencement of the Father’s time with the child and the Father’s usual place of residence at the conclusion of the Father’s time with the child.
Communication
10.That unless otherwise agreed between the parties, parties shall communicate primarily with each other via sms text message unless in case of an emergency.
11.The child is permitted to communicate with each parent at all reasonable times and where the child requests such communication to occur, the parent with whom the child is spending time is to facilitate telephone/video communication between the parent and the child.
12.That the parties shall ensure that the child is afforded privacy when speaking with the other parent.
13.Both parents shall ensure that they communicate in a polite and businesslike manner and shall behave respectfully towards each other at any time that they are in the presence or hearing of the child.
Parenting Courses
14.That within fourteen (14) days from the date of these Orders both parties shall enrol to attend a multi-session therapeutic parenting programs such as Keeping Contact and shall complete the program at the first available opportunity offered by the course provider and provide a copy of the certificate of completion to the other party’s solicitor within fourteen (14) days of the same becoming available.
15.That within fourteen (14) days from the date of these Orders the Father shall enrol to attend a course such as Tuning into Teens or similar course parenting course which identifies alternate discipline strategies and shall complete the course at the first available opportunity offered by the course provider and provide a copy of the certificate of completion to the Mother’s solicitor within fourteen (14) days of the same becoming available.
16.The parties shall not be required to comply with the above Orders relating to Parenting Courses if they have already completed such courses referred to in those Orders.
General Orders
17.In the event the child suffers a medical emergency requiring medical attention while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
18.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the child’s medical practitioner and all health care providers are authorised and directed to communicate with, and provide information and copies of documents to, the Mother and the Father upon either parent’s respective request and at the requesting parent’s own cost (including as to treatment obtained, required, prognosis, medication and test results).
19.Forthwith upon the making of these Orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the principal of the child’s school (and each teacher involved in the education of each child) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.
20.The parents keep each other advised of their current residential address and current phone numbers and that each parent provide to the other details of any proposed change to either their address or their telephone number in writing at least one (1) week in advance of the same.
21.The parents are permitted to provide a copy of these Orders to the child’s school or place of care that the child attends and any therapist or counsellor involved in treating the child from time to time.
22.Each party is restrained from changing the child’s school that he attends upon unless otherwise agreed between the parents in writing.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 May 2022
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