Joslyne & Carrel (No 5)
[2024] FedCFamC1F 134
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Joslyne & Carrel (No 5) [2024] FedCFamC1F 134
File number: BRC 10297 of 2021 Judgment of: SCHONELL J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – PARENTING – Change of residence – Where the child is in the primary care of the mother – Where the father initially applied for the child to live with the mother and spend time with the father – Where the father changed his position, during the trial, for the child to live with him and spend time with the mother – Where the ICL was supportive of the child living with the father – Where the father and the ICL supported a change of residence because they did not believe the mother would facilitate a meaningful relationship between the father and the child – Where the mother ultimately applied for the Court to adjourn the proceedings for several months, and for the child to live with her and spend time with the father during the adjournment period – Where the Single Expert was ambivalent about whether the mother’s proposal was in the child’s best interests but recognised that it would provide some evidence of whether the mother is willing to facilitate a meaningful relationship between the child and the father – Interim orders made providing that the child live with the mother and spend time with the father until the trial re-commences in December 2024.
FAMILY LAW – PARENTING – Unacceptable Risk – Supervision –Where the mother initially sought orders that the father spend supervised time with the child – Where the mother initially contended that unsupervised time would be an unacceptable risk – Where, during the trial, the mother abandoned the proposal for supervision and ultimately sought orders that the father spend time with the child each alternate weekend and half school holidays – Where the mother did not explain this change of position – Where it must logically follow that, in proposing these orders, the mother could no longer contend that the father posed an unacceptable risk – Orders made for the father to spend unsupervised time with the child.
FAMILY LAW – PRACTICE AND PROCEDURE – Part-heard trial – Two adjournments during the trial – Where the father initially sought orders that the child live with the mother and spend time with him – Where the father changed his position during the trial and sought orders for a change of residence – Where there was no evidence by the Single Expert as to the suitability of the father as primary carer – Where the proceedings were adjourned on the second day of trial as a consequence of the father’s revised position – Where during the second part of the part-heard trial, the mother changed her position regarding the orders sought – Where on the last day of the hearing the mother proposed that interim, not final, orders be made providing for the child to continue living with her and to spend unsupervised time with the father – Where the adjournment was not supported by the father or the ICL – Where the Single Expert recognised that an adjournment would provide some evidence of whether the mother is willing to facilitate a meaningful relationship between the child and the father – Where it is found that it is in the best interests of the child that the proceedings be adjourned –Interim parenting orders made that the child live with the mother and spend time with the father and that the matter be adjourned to the end of the year – Reasons set out that the mother’s attitude and willingness to promote a relationship between the child and the father during the adjourned period will be the significant focus at the resumed hearing.
Legislation: Family Law Act 1975 (Cth), Part VII, ss 60B, 60CA, 60CC, 69ZL Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 1-5 March 2024 Place: Brisbane Counsel for the Applicant: Ms. Jardine Solicitor for the Applicant: HCM Legal Counsel for the Respondent: Ms. Eviston Solicitor for the Respondent: Freedom Family Law Counsel for the Independent Children’s Lawyer Ms. Wardle Solicitor for the Independent Children’s Lawyer Gary Rolfe Solicitors ORDERS
BRC 10297 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOSLYNE
ApplicantAND: MR CARREL
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Notwithstanding the Orders made on 5 March 2024, the child, X born 2018, shall spend time with the father as follows:
(a)In the event that X is not otherwise with the father on the Father’s Day weekend, then X shall spend time with the father from after school on the Friday before Father’s Day to 5.00 pm on the Sunday of Father’s Day.
(b)In the event that X is not otherwise with the mother on the Mother’s Day weekend, then X’s time with the father shall be suspended for that weekend and X shall spend time with the mother from after school on the Friday before Mother’s Day to 5.00 pm on the Sunday of Mother’s Day.
(c)From after school or 3.00 pm to 6.00 pm on X’s birthday.
(d)In the school holidays when X is in the father’s care, the mother may contact X by phone or video call each Tuesday and Thursday between 7.00 pm and 7.30 pm and at other times as requested by X, with the father to facilitate the call.
(e)In the school holidays when X is in the mother’s care, the father may contact X by phone or video call each Tuesday and Thursday between 7.00 pm and 7.30 pm and at other times as requested by X, with the mother to facilitate the call.
2.Changeover that does not occur at X’s school shall take place at McDonalds Town Z, or as otherwise agreed in writing.
3.The mother be restrained from bringing X into contact with Mr C born 1979.
4.The mother is at liberty to provide copies of all or any of the judgments in these proceedings, and copies of all or any of the reports of Ms AA to her treating psychiatrist, Dr BB, for the sole purpose of the mother engaging in therapy with Dr BB as recommended and contemplated by Ms AA.
5.The matter be adjourned part-heard to commence on 16 December 2024, for two days.
6.The parties file and serve any updated affidavit/s on which they intend to rely no later than 14 days prior to the hearing.
7.That the parties have liberty to apply on 48 hours’ notice in writing to my Associate.
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 the pseudonym Joslyne & Carrel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are financial and parenting proceedings that were listed for final hearing on a part-heard basis for three days commencing on 1 March 2024. The financial proceedings address a modest pool of assets of approximately $482,000 to $485,000. The parenting proceedings relate to the parties’ only child, who is currently aged five.
At the conclusion of the hearing, the applicant mother (“mother”) submitted that the Court should make interim orders and adjourn the proceedings part-heard, to a date at the end of the year. The mother’s counsel agreed that, if this course was adopted, the Court could not determine the financial proceedings. An adjournment was opposed by the respondent father (“father”) and the Independent Childrens Lawyer (“ICL”), each submitting that the Court should determine, on a final basis, all outstanding relief.
All parties agreed that if the proceedings were adjourned the Court could not determine, on a final basis, the financial proceedings and, further, that there was no need for an updated Single Expert report in relation to the parenting proceedings.
For the reasons set out below, I have determined that it is in the best interests of the child that the proceedings be adjourned part-heard to a date in December 2024. As a consequence of the adjournment, it is necessary to make some interim parenting orders to address the parenting arrangements between now and the adjourned date.
THE APPLICATION FOR AN ADJOURNMENT
Some context to these reasons is gleaned from the Reasons for Judgment delivered by me on 22 August 2023, 30 August 2023, and 31 January 2024, as well the Reasons for Judgment of Justice Rees (as she then was) delivered on 11 December 2023.
The final hearing initially commenced on 21 August 2023 but was adjourned on the second day as a consequence of the father amending the relief he sought. In that respect, the father’s Further Amended Response filed on 30 June 2023 proposed that the child remain living in the mother’s primary care and spend time with him, ultimately on an alternate weekend and half school holiday basis. On the second day of the hearing in August 2023, the father amended his response seeking that the child live with him, not see the mother for three months, and thereafter commence spending time with the mother. In circumstances where there was no evidence from the Single Expert as to the suitability of the father as a primary carer, the hearing was adjourned to November 2023 and directions were made for an updated Single Expert report. As a consequence of the mother requiring urgent surgery, the November hearing dates were subsequently vacated, and further dates were allocated commencing on 1 March 2024.
Central to the father’s case was his assertion that the mother was either unable or unwilling to facilitate a relationship between the child and the father. The father contended that the mother had, on numerous occasions, sought to frustrate the relationship by unilaterally suspending orders for time, not complying with orders for time, and making unfounded allegations with the intent of frustrating the time orders. He contended that the mother’s negative views of the father were so fixed that the only way the child could have a meaningful relationship with both parents was if the child lived with him. The father’s position was supported by the ICL.
The mother contended that the father posed an unacceptable risk as a consequence of perpetrating family violence on her during the relationship, and in the period after separation. The mother’s Case Outline filed 23 February 2024 asserted that there was a need to protect the child from continuing family violence, that the father continued to engage in excessive gambling and consumption of alcohol, that there was possible prescription drug abuse by the father, and that the father continued to engage in coercive and controlling behaviour. During her cross-examination on the first day of the resumed hearing in March 2024, she asserted that there was a risk that the father had sexually exposed himself to the child and that such behaviour by the father could possibly amount to grooming. The mother also contended that the paternal grandfather, who was supervising the father’s time, lacked the capacity to properly supervise.
It is trite to observe that the relief that the parents had each sought changed over the currency of the hearing. In that respect the father, as referred to earlier, initially sought orders for equal shared parental responsibility, that the child live with his mother, and spend time with him. The father then amended his relief seeking: equal shared parental responsibility; that the child live with him; that the mother’s time with the child be suspended for three months; and, upon the resumption of the mother’s time, that this time gradually increase to, ultimately, alternate weekends and half school holidays. By the time of submissions in March 2024, the father sought an order for sole parental responsibility and had abandoned the idea of a suspension of time between the child and the mother.
The mother, for her part, had consistently maintained a position that: saw her having sole parental responsibility; the father spend two hours with the child once a month, supervised at a contact centre; and that she be at liberty to relocate the residence of the child to Western Australia. The mother’s cross examination concluded on the first day of the resumed hearing.
On the second day of the hearing, the mother proposed a new Minute of Order. Whilst still seeking sole parental responsibility, she proposed orders that the child live with her and spend time with the father during the school term between 10.00 am Saturday and 5.00 pm Sunday, supervised by the paternal grandfather for the first twelve months. With respect to school holidays, the mother sought orders that the child spend time with the father during the 2024 school holidays for five nights, supervised by the paternal grandfather. In 2025, the mother proposed that this time increase to six nights, and in 2026 and each following year thereafter, to seven nights. The mother gave no evidence explaining the dramatic change in her case. The mother’s counsel did not seek to call the mother to explain the change in position nor, at the completion of the case for the father, seek to adduce any evidence by way of a case in reply. Her counsel advised that she had abandoned her application to relocate.
On the last day of the hearing and at, or about, the time of submissions the mother provided a further amended Minute of Order. This order abandoned entirely any orders by way of supervision and sought that the father spend time with the child from after school or 3.00 pm Friday until 5.00 pm on Sundays in each alternate week during school terms, and for school holidays, as agreed by the parents in writing or failing agreement, for half of each school holidays. The mother’s Minute of Order also sought a series of other orders dealing with Father’s Day, Mother’s Day, and other occasions when the father could spend unsupervised time with the child. The mother proposed that the Court only make interim orders, and that the matter be adjourned to a date at the end of the year.
It must logically follow that, in proposing the orders the mother did, she could not at the same time contend that the father continued to pose an unacceptable, or for that matter any, risk of harm to the child. I am not however confident that the mother sees, or accepts, the logical consequence of her changed position.
There have been three Single Expert reports prepared. The Single Expert in her third report filed 27 February 2024 records as follows:
35.The central issues remain:
•The beginning formation of a reliable and quality relationship between [X] and the father, it essential that this is allowed to progress without further delay.
•The preference for [X's] primary caring arrangements to be provided by the mother with whom he is most familiar and who represents his strongest attachment figure.
•Despite, consideration to be given to a transfer of residence should the mother continue to deny the child a meaningful relationship, this perpetual stance considered to lack a current or valid assessment of risk and must be considered akin to parental alienation.
…
87.The history of the allegations, counter allegations, alongside identified risks, recommendations for personal and parenting improvement were detailed in the initial Family Report and subsequent review by the same author. The initial assessment determined a prior parental relationship with family violence as a key dynamic. This was a pattern of behaviour perpetrated predominantly, (although not exclusively) by [Mr Carrel] at that time, one that was exacerbated by emotional dysregulation, unmanaged mental health, and misuse of prescription medications. This was ultimately acknowledged by the father, the review report identifying substantial acceptance, renewed insight and active engagement in harm and risk reduction to enable the formation of a safe parenting and co-parenting role.
89. Since this time and ongoing, [Ms Joslyne] has reasserted her allegations of paternal risk, seeking to restrict the father's time to be minimal and supervised only. At updated interviews on both occasions [Ms Joslyne] asserts a continued pattern of coercive control by the father and a lack of acceptance and genuine responsibility for prior behaviours. She opines entrenched family violence by the father, a continuation of such, despite his extensive engagement with several specialist support programmes, and the absence of any updated independent records of harm behaviours by [Mr Carrel].
90.During the current review, [Ms Joslyne] determined this pattern persists, detailing her perception of ongoing risk by the father, the provided examples considered by the writer to lack substance and/or a repeat of what has already been considered and evaluated, thus deemed to be historic. For example, she cited an accidental meeting in traffic, as well as some alleged intimidating behaviours by the father and grandfather to the employed security guard, as well as some paranoia by Mr Carrel, accusations levied at her suggesting legal bias and/or influence. As Ms Joslyne was invited to explore these alleged incidents, it is the assessment of the writer that she sought to contextualise these events, scrutinised through the lens of her prior experiences of the father, lacking a renewed perception or recognition of any effort by [Mr Carrel] to manage himself differently.
91.In evaluating the mother's, no doubt real perception of risk, the writer reiterates what has been consistently articulated across all Family Reports thus far. That is, her experience of the father's behaviour during the relationship and in the immediate post separation period was harmful, the significant impact on her personal sense of safety, general household functioning, and on her older children's psychological steadiness not to be underestimated. Notwithstanding, when consideration is required to evaluate the opportunity for [X's] to enjoy a meaningful relationship with both parents, any assessment must consider future risk of harm, decision making evidenced based, developmentally informed and each scenario balanced against the longitudinal consequences on the child’s personal functioning and coping.
92.During the current interview process, it is determined by the writer that the mother did not present any new information to suggest family violence behaviours perpetrated by the father have continued to a level (if at all) justifying limited and supervised time. [Ms Joslyne] represented historical events to suggest current risk, these examples were either not accepted by the father, who could provide reliable alternative interpretations, there was an absence of independent corroboration nor ones considered relevant to the required evaluation as to whether the child can be safely supported to enjoy a positive connection with his father.
…
97.In considering the writers remit to act as an independent and child focussed advocate for [X], it is the repeated assessment that [Mr Carrel] needs to be prioritised as a significant adult in [X's] life. Thus far and continuing, [Ms Joslyne] has denied [X] the right to complete identity formation, and although whilst some initial restrictions on the nature and extent of time offered were certainly necessary at the commencement of the proceedings, this is a dynamic no longer considered to be impactful on the child, one that restricts the promotion of a meaningful relationship with his father and the development of a consistent and predictable attachment pattern.
98. The writer reiterates without moderation, the assessment of the prior review that there has been substantial, sustained change by the father who has engaged in appropriate supports to reduce personal risk and enhance parenting insight and capacity. Aside from the intractable views of the mother, concerns now deemed to hold little, if any merit, it is assessed there are no barriers to [X] spending substantial time with his father.
..
100. To assist the Court to make final Orders, it is assessed as increasingly worrisome that [Ms Joslyne] appears to thwart efforts to progress time, the father's renewed position to seek a transfer of residence entirely appropriate within the context of this personal and parenting frustration Whilst there, may indeed be some benefits to [X] within such an arrangement, predominantly the promotion of a healthy relationship with his father without influence, this is considered to be a last resort and is not supported at this stage, although the decision making in this regard is marginal.
…
102.The primary proposal therefore remains one wherein [X] continues to reside in the care of the mother, supported to spend unsupervised, unencumbered time with the father each alternate weekend and half each school holiday period.
103. Nonetheless, and with some regret, should [Ms Joslyne] be unwilling to support a plan to allow the promotion of a regular and meaningful relationship with the father as outlined, the Court may consider it in [X's] best interests for primary care to be offered by the father who demonstrates no reciprocal resistance to support the maternal connection.
104. The Court may also consider a transfer care under such circumstances that [Ms Joslyne] progresses her proposal to move interstate. These are the circumstances that would result in an inevitable severing of the father and child relationship, increased distance serving only to exacerbate co-parenting conflict and poor communication. This is untenable and not considered to be in [X's] best interests.
During the course of her cross-examination, the Single Expert expressed some considerable misgivings surrounding the mother’s unexplained change of position, and whether the mother was bona fide and genuine in now seeking to promote a significant and substantial time arrangement between the child and the father. Nevertheless, the Single Expert remained of the view that a change of residence at this stage was not supported, albeit she contended that it was marginal and finely balanced.
I raised with the Single Expert whether the Court should make interim orders and bring the matter back in approximately six months’ time, and determine then what final arrangements should be made for the child. That proposal had, as an attraction, the ability to really test the genuineness of the mother’s proposal and to determine whether she was really committed to maintaining a relationship between the child and the father. The Single Expert was somewhat ambivalent about whether such a proposal was in the best interests of the child but recognised that it would provide at least some evidence of the mother’s willingness to facilitate a meaningful relationship, consistent with the orders that the Single Expert then promoted.
During submissions with the parties, the issue of the matter being adjourned to a future date was raised by me. The mother, for her part, sought an adjournment. An adjournment was opposed by the father and the ICL, who jointly submitted that there was a need for finality.
An adjournment of the proceedings could well be viewed as a strategy by the mother to attempt to avoid the most unpalatable of outcomes, namely, as far as she is concerned, the child living primarily with the father. Alternatively, it might represent a genuine attempt by the mother to convince the Court that she has listened to the recommendations of the Single Expert and reflected on her own conduct and behaviour to date. In circumstances where she has failed to provide an explanation, the Court is unable to reach any firm view and to do so would only be to speculate.
I am not satisfied that it is appropriate at this stage to make final orders. The Single Expert was of the view that the child should live with the mother but remained concerned about her willingness to facilitate a relationship. She described the mother’s position, as articulated in her report, as one akin to parental alienation.
There is no evidence before me as to why the mother has changed her position. If the mother is genuine and has changed what has been a long-standing opposition to any form of meaningful relationship between the child and the father, then a maintenance of the regime now proposed by the mother would accord with the recommendations of the Single Expert. If the mother has not changed, and either maintains or reverts to what the father, the ICL, and, to an extent, the Single Expert say she has done since separation, then the Court may be faced with adopting the position of the father and the ICL, and the recommendation of the Single Expert that:
103.…should [Ms Joslyne] be unwilling to support a plan to allow the promotion of a regular and meaningful relationship with the father as outlined, the Court may consider it in [X’s] best interests for primary care to be offered by the father who demonstrates no reciprocal resistance to support the maternal connection.
(Single Expert Report filed 27 February 2024, paragraph 103)
That will only be known by making interim orders and adjourning the proceedings to December 2024.
For these reasons, I propose to adjourn the matter to a final hearing for two days commencing 16 December 2024.
The mother’s attitude and willingness to promote a relationship between the child and the father during the adjourned period will clearly be the significant focus at the resumed hearing. I have not made any orders as to parental responsibility. Accordingly, both parents retain parental responsibility for the child. They need to commence communicating and resolving any long‑term issues in the best interests of the child.
In circumstances where I have determined that it is in the best interests of the child for the proceedings to be adjourned, it by necessity means that I am unable to determine the financial dispute between the parties.
FUTHER PARENTING ORDERS
At the conclusion of the hearing in March 2024, I made interim orders consistent with the mother’s then position that saw the child remain in her care, but provided that time take place on each alternate weekend and half school holidays. Those orders were to cover the period between the end of the hearing and the delivery of judgement. As the hearing will be adjourned to 16 December 2024 it is necessary to make additional orders to cover events that may arise in the interim, such as Father’s Day, Mother’s Day, and the child’s birthday. The final hearing will be heard before the commencement of Christmas holidays.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
I have had regard to the relevant s60CC factors and also the limited ambit of the dispute as to what the arrangements should be for Father’s Day, Mother’s Day, and the child’s birthday as set out in the competing positions of the parties as articulated in Exhibits 24, 39, and 40.
All parties seemed to propose a carve out of the weekend on Father’s Day and Mother’s Day, and proposed somewhat similar orders for the child’s birthday, so I will make an order to give effect to their general agreement.
There is no necessity to make orders for Easter as it falls in the school holidays.
In circumstances where the parties live a long way apart, it is necessary for there to be orders that cover the changeover of the child on the Sunday of each alternate weekend, and at other times when changeover does not occur at the child’s school. The father proposed that the changeover take place at a location which he contended was approximately, albeit not exactly, midway between the two parties’ positions. He proposed that there be a changeover at the McDonalds Restaurant at Town Z.
The mother opposed that location, contending that she had two other children for whom she was responsible and that it imposed an unfair burden upon her. Whilst accepting that the mother has the responsibility for the care of two other children, I am satisfied that it is appropriate that the changeover location be as contended for by the father. One of the benefits of a changeover of the type proposed by the father is that it sends a positive signal to the child that the mother is involved in, and sees a benefit in, the delivery of the child to the father.
The mother is engaged with a psychologist. It was the recommendation of the Single Expert that the mother engage with a forensic psychologist to address the issues raised by the various reports. I propose to permit the release of the reports and judgements delivered in these proceedings to the mother’s current psychologist solely for the purposes of engaging in therapy.
Finally, the mother contended that she had separated from her former partner, Mr C. The ending of this relationship was advised to the Court on the first day of the resumed hearing and was contrary to what had been the position in the mother’s case to that point in time, particularly in circumstances where Mr C had sworn an affidavit on 16 February 2024. The mother indicated, through her counsel, that she would consent to an injunction restraining her from bringing the child into contact with Mr C. My Judgment delivered on 30 August 2023 addressed the concerns raised in relation to Mr. Mr C. In those circumstances, I propose to make that order.
Accordingly, I will make orders to give effect to these reasons.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 8 March 2024
0
1