Federal Circuit and Family Court of Australia
(DIVISION 1)
Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640
File number(s): BRC 4211 of 2019 Judgment of: BAUMANN J Date of judgment: 31 August 2022 Catchwords: FAMILY LAW – PARENTING – Where the children have had long term exposure to parental conflict –Where the children have expressed wishes as to their living arrangements – Both parents seek a finding that the other presents as an unacceptable risk of harm to the children – No such finding made by the Court – more simple orders made than the complicated and lengthy proposals of the parties – Final order made in the children’s best interests for substantial and significant time Legislation: Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA Cases cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Humphrey & Humphrey [2022] FedCFamC1F 456
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 131 Date of last submission/s: 12 August 2020 Date of hearing: 8–11 June 2020 Place: Brisbane Counsel for the Applicant: Ms Oakley Solicitor for the Applicant: Evans Brandon Family Lawyers Counsel for the Respondent: Mr Minnery Solicitor for the Respondent: Naughton McCarthy Family Lawyers ORDERS
BRC 4211 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HUMPHREY
Applicant
AND: MR HUMPHREY
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
31 AUGUST 2022
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders in relation to the children, X born in 2007 and Z born in 2011 (“the children”) are discharged subject to the interim Orders as to the time the children spend with each parent continuing until 4 October 2022.
2.That the parents have equal shared parental responsibility for major long term decisions in relation to the children.
3.That the children shall live with the parents during school terms from Tuesday, 4 October 2022 as follows, unless otherwise agreed in writing, namely:
(a)With the mother from after school Thursday, 6 October 2022 to before school Tuesday, 11 October 2022 and each alternate weekend thereafter;
(b)With the mother from after school Thursday, 13 October 2022 to before school Friday, 14 October 2022 and each alternate Thursday thereafter;
(c)With the father at all other times during school terms; and
(d)Where under these Orders for school holiday time the children live with the mother for the first half of school holiday periods, the regime of time under Order 3(a) shall begin on the first weekend after school resumes and if the children live with the mother for the second half of school holidays, the regime shall resume on the second weekend.
4.That for the end of term four (4) school holidays in 2022 and for each school holiday period thereafter the children shall live with the parents, unless otherwise agreed in writing:
(a)in even numbered years with the mother from the conclusion of…
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- Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640
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- [2022] FedCFamC1F 640
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CaseChat Overview and Summary
The court carefully considered the evidence presented, including the history of conflict between the parents, the allegations of domestic violence, and the impact of the conflict on the children. The court noted that both parents had engaged in conduct that involved the children in their disputes, but found that the father had done so more extensively. The court was particularly concerned with the father's recording of interactions with the children, which the court found did little more than reveal the children's exposure to parental conflict. The court also considered the mother's initiation of protection order proceedings, which had escalated the conflict between the parents.
In making its decision, the court balanced the need for the children to have a stable and certain living arrangement with the need to protect them from harm. The court made interim parenting orders that provided for the children to live primarily with the mother, with specified periods of time with the father. The court also appointed a single expert to prepare a family report and granted injunctive relief to protect the children from further abuse and exposure to domestic violence.
The court's reasoning was based on the best interests of the children, and its decision reflected a careful consideration of the evidence and the legal principles applicable to parenting cases involving domestic violence. The court's outcome was designed to provide the children with a sense of stability and protection while ensuring that their safety and well-being were prioritised. The court's final orders reflected its determination to protect the children from further harm and to promote their best interests in the long term.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I find tensions and conflict between the parents leading up to separation were manifest in verbal stoushes and arguments. I do not ignore an allegation of physical abuse some time earlier at Region MM with a paddle, but frankly found the narrative vague. The mother’s decision to retain her income from employment with her parents upset the father, who, over the period before separation, was trying to maintain a business with fluctuating financial returns. What did occur, and the father admits, is that he had begun to record and video some exchanges with the children (see Exhibit 10(a), (b) and (c)). He accepts now he should not have done so. I am satisfied he thought it would somehow benefit his position to gather evidence in this way. The recordings do little more than reveal the children were being exposed to and had witnessed parental conflict. At about the time of separation, the mother caused proceedings to be commenced in the State Magistrates Court for a protection order, naming the children and herself as “aggrieved persons”. I am satisfied that the commencement of these proceedings by the mother contributed to a significant escalation in the father’s desire to prove there was no basis for any temporary or final protection order against him, but rather his claim the mother was abusive should be accepted.Conduct between separation and the making of final Domestic Violence Orders in early 2019 Noting that during this period no applications for parenting orders had been filed by either parent, the evidence during this period needs to be assessed in the context that vigorous and hotly contested domestic violence issues were on foot, and to some degree, both parents engaged the children in the escalating conflict – though the father more so in my view. Before identifying many negative events, I acknowledge that despite the “evidence gathering”, these parents can be seen to have at times focused on their children’s needs for certainty and stability, by:(a)resolving a form of parenting plan in March 2018 where the children were to continue living with the mother; (b)engaging the children in counselling with Ms DD. It appears counselling may have commenced as early as early 2018, however the notes (Exhibits 9 and 14) cover a shorter period. The notes are difficult to read. The father says he was not consulted on the mother’s decision to engage with the counsellor, and ultimately came to the conclusion the counsellor was not independent; was influenced by the mother and/or biased against him. Certainly the exchange between the father and the counsellor in mid-2018 (which the father initiated after an alleged “altercation” the previous evening between the children and the mother) was interrupted by the psychologist interpreting the father’s narrative about the mother in the presence of the children as inappropriate, asking them to leave the room. The notes reveal a litany of concerns/complaints about the mother by the father. I agree it was inappropriate for the father to discuss some of these issues initially in the presence of the children. I am unable to make an assessment of whether the counsellor was (or could) remain independent as I did not have all her notes and importantly she was not required for cross-examination. The evidence supports a finding that at least X appeared to adopt some of her father’s concerns about Ms DD; and(c)undertaking around mid-2018 a form of family dispute resolution with Ms FF, resulting in an increase in the children’s time with the father (being essentially then eight nights with the mother and six nights with the father). This is despite the father having launched his own domestic violence proceedings against the mother in mid-2018.