Henry & Oden and Anor

Case [2020] FamCA 1029

FAMILY COURT OF AUSTRALIA

Henry & Oden and Anor [2020] FamCA 1029

File number(s): BRC 2450 of 2018
Judgment of: BAUMANN J
Date of judgment: 22 December 2020
Catchwords: FAMILY LAW – CHILDREN – Contested residence – Consideration of risk factors – Orders made for the child to live with the maternal grandmother and spend supervised time with the mother
Legislation: Family Law Act 1975 (Cth), ss 60CC, 68B, 61DA, 65DAA
Cases cited:

Carpenter & Lunn [2008] FamCAFC 128

Champness & Hanson [2009] FamCAFC 96

Goode & Goode (2006) FLC 93-286

Henry & Oden and Ors [2019] FamCA 744

Slater & Light [2013] FamCAFC 4

Vallans & Vallans (2019) 60 Fam LR 193

Number of paragraphs: 99
Date of hearing: 27, 28 & 29 October 2020 and 3 December 2020
Place: Brisbane
Counsel for the Applicant: Mr S Moon
First Respondent: Self-represented
Second Respondent: No appearance
Counsel for the Independent Children’s Lawyer: Mr G Kalimnios

ORDERS

BRC 2450 of 2018
BETWEEN:

MS HENRY

Applicant
AND:

MS ODEN

First Respondent

MR KROME

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.That all previous parenting orders are discharged.

Lives with

2.That the child, X ODEN born … 2011 (“the child”) shall live with the Applicant maternal grandmother MS HENRY in Western Australia.

Parental responsibility

3.That the maternal grandmother has sole parental responsibility for making decisions regarding major long-term issues for the child, subject to:

(a)the maternal grandmother in exercising her parental responsibility shall consult with relevant medical, Allied Health and Educational professionals and shall invite, evidenced in writing, comment and suggestion from the mother.  The maternal grandmother will then consider the mother’s input before making any final decision regarding the child;

(b)the maternal grandmother will advise the mother in writing of the decision that has been made; and

(c)except as these Orders provide or as maybe practically necessary to implement the Orders the maternal grandmother shall not seek nor consider advice from any family member other than the mother.

Communication with the child

4.That the mother shall be permitted to communicate with the child by telephone or any electronic means such as Skype as might be agreed but failing any agreement as follows:

(a)each Wednesday evening commencing at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;

(b)each Sunday morning commencing at 10.00am (Western Australia time) for a duration of up to two (2) hours;

(c)the child’s birthday each year at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes, providing that if the child wishes to speak with her mother longer, she may do so;

(d)the mother’s birthday each year each year at 7.30pm (Western Australia time)  for a duration of up to thirty (30) minutes;

(e)Good Friday at 7.30pm (Western Australia time)  for a duration of up to thirty (30) minutes;

(f)Easter Sunday after the child attends Mass, for a duration of up to thirty (30) minutes;

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AGLC
Henry & Oden and Anor [2020] FamCA 1029
Case
[2020] FamCA 1029
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Ms Henry (the maternal grandmother, the applicant) and Ms Oden (the mother, the first respondent) concerning the living arrangements and parental responsibility for the child, X Oden. Mr Krome was the second respondent. The matter came before Baumann J in the Family Court of Western Australia.

The court was required to determine the best interests of the child, X, in circumstances where there were significant concerns regarding the mother's functioning, emotional control, and past relationship choices. Specifically, the court had to consider the risks associated with the mother's home environment compared to the maternal grandmother's home, and whether the presumption of equal shared parental responsibility should apply. The court also needed to make orders regarding the child's residence, parental responsibility for major long-term issues, communication between the child and the mother, and supervised time between the child and the mother.

Baumann J found the mother to be an unreliable historian, whose evidence was often coloured by her own perceptions of her childhood and her antipathy towards her mother. While acknowledging some risks in the maternal grandmother's home, the court found these to be significantly less than the risks present in the mother's home. The court considered the child's views, as reported by a child psychologist, which indicated a preference for seeing her mother in Western Australia to avoid flying to Queensland. Applying the principles of the *Family Law Act 1975* (Cth), particularly section 60CC, the court concluded that it was contrary to X's best interests for the presumption of equal shared parental responsibility to apply.

The court ordered that X live with the maternal grandmother in Western Australia and that the maternal grandmother have sole parental responsibility for major long-term decisions, subject to consultation with the mother. The mother was granted specific, supervised time with X, to occur in Western Australia during certain school holidays and in Queensland during other school holidays, with the mother bearing her own travel costs to Western Australia. The court also made detailed orders regarding communication between the mother and child, and the child's health and educational needs, emphasizing the importance of the maternal grandmother facilitating a positive parent-child relationship.

Orders

Orders of the court

BRC 2450 of 2018

BETWEEN:

MS HENRY

Applicant

AND:

MS ODEN

First Respondent

MR KROME

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

22 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous parenting orders are discharged.

Lives with

2. That the child, X ODEN born … 2011 (“the child”) shall live with the Applicant maternal grandmother MS HENRY in Western Australia.

Parental responsibility

3. That the maternal grandmother has sole parental responsibility for making decisions regarding major long-term issues for the child, subject to:

(a) the maternal grandmother in exercising her parental responsibility shall consult with relevant medical, Allied Health and Educational professionals and shall invite, evidenced in writing, comment and suggestion from the mother. The maternal grandmother will then consider the mother’s input before making any final decision regarding the child;

(b) the maternal grandmother will advise the mother in writing of the decision that has been made; and

(c) except as these Orders provide or as maybe practically necessary to implement the Orders the maternal grandmother shall not seek nor consider advice from any family member other than the mother.

Communication with the child

4. That the mother shall be permitted to communicate with the child by telephone or any electronic means such as Skype as might be agreed but failing any agreement as follows:

(a) each Wednesday evening commencing at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;

(b) each Sunday morning commencing at 10.00am (Western Australia time) for a duration of up to two (2) hours;

(c) the child’s birthday each year at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes, providing that if the child wishes to speak with her mother longer, she may do so;

(d) the mother’s birthday each year each year at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;

(e) Good Friday at 7.30pm (Western Australia time) for a duration of up to thirty (30) minutes;

(f) Easter Sunday after the child attends Mass, for a duration of up to thirty (30) minutes;

(g) Christmas Day after the child attends Mass for a duration of up to thirty (30) minutes, providing that if the child wishes to speak with her mother longer, she may do so;

(h) Boxing Day at 7.30am (Western Australia time) for a duration of up to thirty (30) minutes; and

(i) if the child is too tired or is ill or does not wish to speak to her mother, the maternal grandmother will ensure that the child speaks to her mother at another time, as soon as possible afterwards.

5. That the maternal grandmother shall initiate the telephone or Skype (or similar platform) call at the nominated time to the mobile phone or other device of the mother and shall ensure that:

(a) the mobile phone or device being used has sufficient power, data and credit;

(b) the child is placed in a quiet room free from distractions; and

(c) the child prior to the communication is encouraged to speak with the mother.

6. That the child’s communications with her mother must not be recorded.

The child’s supervised time with her mother

7. That the child will spend supervised time with the mother as agreed between the mother and maternal grandmother, and failing agreement as follows:

In Western Australia

(a) the child will spend supervised time with her mother in Western Australia during the Western Australian school holiday periods at the end of term one (1), three (3) and four (4) in each year and the following shall apply:

(i) the child shall remain in Western Australia;

(ii) the mother when travelling to Western Australia and intending to see the child shall notify the maternal grandmother of her intended arrival date in Perth, no less than sixty (60) days prior to her arrival date, upon which notification the maternal grandmother shall nominate a contact centre in Perth and notify the mother no less than thirty (30) days before the commencement of the holiday period of the details of the contact centre;

(iii) the mother will travel at her own expense to Western Australia;

(iv) the maternal grandmother and the mother must comply with the induction requirements of the nominated contact centre, including paying any induction fee;

(v) the mother is to spend up to every second day with the child at the contact centre for up to a total of five (5) occasions during the nominated school holiday period; and

(vi) the parties are to equally bear the costs of the supervision.

In Queensland

(b) the child will spend supervised time with her mother in Queensland during the child’s end of term two (2) Western Australian school holiday period in each year and the following shall apply:

(i) the maternal grandmother and the child shall travel to Queensland for a period of no less than ten (10) days, at the cost of the maternal grandmother;

(ii) by 31 March each year, the mother shall confirm in writing to the maternal grandmother, her intention to exercise the supervised time under this Order in Queensland;

(iii) the maternal grandmother shall notify the mother of the details of the contact centre in Brisbane where the contact is to occur;

(iv) both parties are to comply with the induction requirements of the nominated contact centre, including paying any induction fee;

(v) the child shall spend supervised time with her mother on up to every second day during the visit to Queensland, such time to be at the contact centre nominated by the maternal grandmother; and

(vi) the parties are to equally bear the costs of the supervision.

Educational and health needs of the child

8. That the maternal grandmother will ensure that the child continues to engage with the child psychologist, Mr Q, or if Mr Q is unavailable, with another suitably qualified psychologist as referred by the child’s General Practitioner, and the child shall continue to engage with a child psychologist for as long as Mr Q or the other suitably qualified psychologist considers the sessions as helpful and beneficial for the child.

9. That the maternal grandmother will pursue all recommendations for extra tuition and education for the child that staff at the child’s school may instruct and/or recommend.

10. That this Order operates as an authority permitting the mother to seek, at her cost, information as to the child’s health, welfare and development from a school (including copies of school reports), medical professional, allied health professional, hospital or any other organisation with respect to whom the child is or has been a student or patient.

11. That the maternal grandmother advise the mother in writing, and keep her informed of the names and contact details of any school, medical or allied health professional the child regularly attends upon.

12. That the maternal grandmother shall advise the mother in writing, and in the case of an emergency as soon as practical by electronic means, of any serious health issue affecting the child or any serious accident involving the child.

13. That the maternal grandmother and the mother shall only communicate in relation to the child by way of SMS text message or email unless in an emergency.

Day to day matters

14. That neither party shall discuss these proceedings with the child.

15. That the mother and maternal grandmother shall keep each other informed of their current residential address, email address, mobile phone number (for SMS text message purposes) and advise of any change within twenty four (24) hours of such change.

Non-denigration

16. That when with the child or communicating with the child, neither party shall denigrate, criticise or speak ill of the other party or about the child’s family members, and both parties shall do all things necessary, including removing the child from the presence of a third party, or discontinuing the telephone or Skype (or similar platform) call to ensure that no third party denigrates, criticises or speaks ill of the other party or about the child’s family members.

17. That the parties will make every effort to speak in neutral or positive terms about the other party when the child is with them, or communicating with them.

18. That the maternal grandmother will continue to make every effort to facilitate a positive parent child relationship between the mother and the child.

Family dispute resolution to settle future dispute

19. That the process to be used for resolving disputes about the terms of operation of these Orders be as follows:

(a) the parties shall consult with a registered Family Dispute Resolution Practitioner (“FDRP”);

(b) the FDRP will assist the parties to resolve any dispute or reaching agreement about changes to be made;

(c) the party not seeking a change to the Orders shall nominate three (3) FDRPs and advise the other party in writing of the fees, experience and availability of the FDRPs;

(d) the party seeking a change shall choose one (1) of the listed practitioners within three (3) business days of receipt of the list;

(e) if the party seeking to change the Orders fails to choose, then the party not seeking the change may choose; and

(f) the party who is seeking to vary the Orders will be liable for the costs of the FDRP and the venue hire of the first three (3) hours of family dispute resolution.

20. That the mother and the maternal grandmother shall have authority to provide a copy of these Reasons to any health professional they consult for treatment, counselling or therapeutic support.

21. That the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

Although there are practical difficulties with such an order, that is not a bar to such an order being made. He noted that orders for a child to spend time with a parent or other person, even supervised, are not really final and are always subject to review if there has been a material change of circumstances. As set out at Slater & Light [2013] FamCAFC 4 at paragraphs 38 and 39, namely:[38] While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full Court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed. [39] May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review: 8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).…10.In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence…his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant…it is desirable that some consideration be given to how the time the child spends with the parent could move from supervised time to unsupervised time. I deal with this dilemma later in these Reasons.CONTEXTUAL BACKGROUND With such a long and difficult history I choose to deal with the background in a succinct way. Hereafter statements of fact should be regarded as findings of facts. In that regard, Mr Moon, on behalf of the maternal grandmother, made a submission that the mother’s evidence should be treated cautiously. I agree she is an unreliable historian. I also agree that there are many examples in her evidence before me where the mother moved from making clear denials of certain conduct, then when confronted with evidence such as police records, moved to being somewhat evasive and often defensive. Whether this is a characteristic of the mother’s personality or a reflection of the very difficult and stressful history that she says she has experienced growing up and since she became an adult, is a matter that is at least alluded to by the experts whose evidence I deal with through these Reasons. In making this finding about the mother’s evidence, I do not make a finding that she is untruthful in every respect. However, the extent of her antipathy for her mother and her need, from her perspective, to blame her mother for all of the problems in her life that she has faced, is such that it gives a perception to her evidence which, when considering other evidence available to the Court, makes her versions at times unreliable and coloured by her own view of her childhood history.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

However, as the Reasons hopefully seek to demonstrate, there are many factors that go into determining as the ultimate issue in cases like this, what is in the best interests of a child and giving birth to the child is but one factor.CONCLUSIONS The presumption of equal shared parental responsibility applies unless a principled reason is demonstrated on the evidence to depart – as the Act permits (also see Vallans & Vallans (2019) 60 Fam LR 193). In my view, it is contrary to the best interests of X for the presumption to apply. I accept that as the child will be living with the maternal grandmother in Western Australia and where the communication is so ineffective with the mother, the granting to the maternal grandmother of sole parental responsibility for major long term decisions is appropriate. The maternal grandmother will be ordered to consult with the mother in the way proposed by the ICL. The best interests of X compel that she continue to live with the maternal grandmother in Western Australia. At this stage of the child’s life, the mother’s functioning and inability to maintain emotional control (particularly under pressure) presents too much of a risk to X to place the child into the mother’s primary care. The evidence does not corroborate the mother’s statements that she has support here in Queensland. Neighbours change. If the mother commits to completing her desired tertiary qualifications and then secures the type of employment her intellect would permit, all those factors are capable of providing the mother with a level of both stability; financial security and self-worth. If the mother is able to properly engage in therapeutic support – based on an actual honest understanding of her past behaviour – this could also allow her to distance herself from the events of the past which seem to guide and shape to a large degree her behaviour now. If she can do so, I would not discount that the mother would be a much stronger option for both unsupervised time and even primary care, than she presents on the evidence now. Much will depend on how the mother, with some time to reflect and hopefully with further focused therapy as both Court experts recommend, reacts to the Orders pronounced today. Even though the mother says she will not spend time with X supervised, it is in X’s best interests to do so. I intend to so order, including communication electronically, however the maternal grandmother should not be required to meet the costs of X travelling to Queensland (accompanied by an adult), if the mother refuses to attend supervised visits. The mother will be required to give written notice by 31 March each year of her intention to spend supervised time with X in Queensland. Whilst I accept the mother’s evidence that she has no desire to live in Western Australia, I do not so easily accept that the mother would be unable in time (if she was motivated to do so) to spend supervised time in Western Australia with X. The mother’s deep love for X and the hope that in time she can overcome the hurdles which the recent history have created for her sustainably, is the only motivation the mother needs. However, if the mother’s stated position on her evidence and submissions does not change, the real loss with be suffered by X.

Ratio Decidendi

Legal Principle Established

I do not ignore that there are some risks in the maternal grandmother’s home arising from these negative views and, at times, I find the difficulty she would have under stress and under attack from her daughter (as has been the case in the past) to disguise or protect the child from those views. The maternal grandmother will benefit from individual counselling to help her do so as Dr C opines. However, those risks in the maternal grandmother’s home are significantly less, in my view, than the risks in the mother’s home arising from her functioning, her inability to control her emotions and the poor choices she makes about relationships and has continued to make for almost, it seems, the entirety of her adult life.SECTION 60CC(3) – ADDITIONAL CONSIDERATIONS The best independent evidence of the child’s views are those as set out in the report of Dr C, which I repeat now in these Reasons:6.01X Oden was located in the office of the principal of her school for her interview.6.02She seemed relaxed and chatty for most of the conversation, and was easy to talk with and volunteering of information.6.03Her principal, Ms. U, advised that X had been prepared for this interview and was presenting as positive and ready, emotionally and physically. X spoke easily and volunteered lots of information about her life, although was hesitant when conversation included her family.6.04X volunteered that she had been reading books and that her favourite books currently were about a unicorn and a kitten.6.05 She was also very keen to read the “How to train a Dragon” series.6.06She advised that she was attending D School and was nine years of age and in year four. 6.07Her favourite subjects were religion, literacy, maths, science and art, and on further reflection she thought her most favourite subjects were science and art.6.08Both these subjects were “doing” subjects where she got to do things.6.09X advised the writer that she resided in a house with her Nanna and Pop, and her dog.6.10She stated that her Poppy works for the council and that her Nanny works at a shop.6.11On a daily basis she stated that her Nan or her aunt take her to school and pick her up in the afternoon.6.12When she arrives home, she typically likes to draw and read or do her homework.6.13Her favourite meal is lasagne and her Poppy and her Nan are both good cooks.6.14On the weekends she likes to draw, play with animals and collect and look at rocks.6.15She has friends, and she likes playing with her friend Y the most.6.16They play make believe games like Fantastic Beasts (the movie) and they both make up fantasy animals with special powers and abilities.6.17X went into great detail about a fantasy animal that she was creating and all the abilities and powers that this creature would have.6.18She likes to play and go to the beach when she can, and enjoys spending time with her aunt who has moved into Perth.6.19She also likes to engage in sport, and she has to date played hockey, soccer, archery and swimming lessons.6.20X advised that she talks to her mother every Monday and Tuesday and that sometimes it’s a long time talking. She offered that she thought her mother worked.6.21When asked about their conversations, X was unable to provide information.6.22She did state that she had been on a plane to Queensland to see her mother, and that she had not enjoyed the plane trip.6.23When asked about flying she stated that she didn’t like going in planes, and that she didn’t want to travel to Queensland again.6.24When given the chance to tell the writer anything more, X volunteered that she would prefer to see her mother in Western Australia as then she would not have to fly in a plane.6.25The writer asked X what activities she would do with her mother if she came to Western Australia, and X thought they might go to the beach.6.26She did not provide additional information or chat about her mother or her family.6.27When asked if there was anything she needed in order for her life to be more comfortable or fun, she suggested not travelling to Queensland in a plane.