Humphrey & Humphrey (No 2)

Case [2022] FedCFamC1F 640


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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AGLC
Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640
Case
[2022] FedCFamC1F 640
Decision Date

CaseChat Overview and Summary

In the case of Humphrey & Humphrey (No 2), the court was called upon to make interim parenting orders concerning the children, [X] and [Z], born in 2007 and 2011 respectively. The parents had separated, and there were significant concerns regarding domestic violence and the involvement of the children in the conflict between the parents. The court was required to decide on the appropriate living arrangements for the children and to ensure their safety and well-being. The court also needed to determine whether to appoint a single expert to prepare a family report and to grant injunctive relief to protect the children from further harm.

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

On 23 May 2019, the matter came before me urgently and before the father had formally filed his Response and cross application, when the Court made interim parenting Orders by consent as follows:1.That the children, [X] born in 2007 (“[X]”) and [Z] born in 2011 [(“Z”)] (collectively “the children”) live with the mother at all times that they do not live with the father.2.That the children live with the father as agreed in writing and failing agreement, as follows:a. During the school term, in a two (2) week cycle commencing 27 May 2019:i.During week one (1):1. [X] only, is to live with the father from after school or 3.00pm on Tuesday until before school or 9.00am on Wednesday;2. From after school or 3.00pm on Wednesday until before school or 9.00am on Thursday; and3. From after school or 3.00pm on Friday until before school or 9.00am the following Monday.ii.During week two (2):1. [Z] only, is to live with the father from after school or 3.00pm on Tuesday until before school or 9.00am on Wednesday; and2. From after school or 3.00pm on Wednesday until before school or 9.00am on Thursday.b. During the June and July 2019 school holiday periods from 3.00pm or after school on the last day of term two (2), until 9.00am on Thursday, 4 July 2019.3.That for the purposes of Order 2(a):a. the two (2) week cycle is to continue after school holiday period as if there had been no break;b. in the event of a public holiday or pupil free day:iii.On a Monday, the children’s time with the parent who had them on the preceding weekend shall be extended to before school or 9.00am on Tuesday; andiv.On a Friday, the children’s time with the parent who has them on the weekend following, shall begin after school or 3.00pm on the Thursday preceding the Friday.Expert evidence4.That pursuant to Rule 15.44 of the Family Law Rules 2004, [Mr BB] be appointed as a Single Expert for the purposes of preparing a family report, with family report interviews to take place on 29 July 2019.5.That the parents shall do all acts and things as are necessary to give effect to the appointment of the Single Expert, including attend at his appointment for the purposes of him preparing, making and filing a family report touching upon the matters about which the Single Expert considers the Court should be informed.6.That the Single Expert be granted leave at be at liberty to inspect any subpoena documents produced to the Court.7.That the parents bear the costs of the Single Expert equally.Injunctive relief8.That pursuant to Sections 68B and 67ZC of the Family Law Act 1975, the mother and father are hereby each restrained by injunction from:a. abusing, insulting or denigrating the children or either of them, or the other parent, or a member of their family or household to or in the presence of the children or either of them, and from permitting another person to do so;b. discussing any allegation made or evidence given in these proceedings to or in the presence of the children or either of them and from permitting another person to do so; andc. exposing the children or either of them to any form of domestic violence or family violence including verbal violence or using abusive language to, within, or in the hearing of the children or either of them.9.That each parent will keep the other informed of the following as soon as reasonably practicable:a. Appointments regarding the children or either of them and attendances upon doctors or any treating professional;b. Any mediations which are prescribed for either of the children at any time;c. Any diagnosis regarding either of the children as to any health issues as soon as possible;d. Any hospitalisations as soon as it is reasonably practicable to do so; ande. All referrals to specialists.

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.