JOYCE & ANTONY

[2020] FamCA 823

FAMILY COURT OF AUSTRALIA

JOYCE & ANTONY [2020] FamCA 823

FAMILY LAW – CHILDREN – interim – where the father seeks a change of residence on an interim basis – where a final hearing is listed in six months where all of the evidence can be tested – where the parents now live in excess of 400 kilometres apart – where a change of residence will involve a change of schooling – where the child remaining at his current school provides stability for the child and is a significant factor that supports the child remaining in the mother’s primary care – where the Court is not persuaded that an interim change of residence is in the child’s best interests – current interim orders to continue with some variations to reduce travel time for the child.

Family Law Act 1975 (Cth) s 60CC

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713

APPLICANT: Ms Joyce

RESPONDENT: Mr Antony

FILE NUMBER: CSC 947 of 2019

DATE DELIVERED: 30 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 25 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C Dart

SOLICITOR FOR THE APPLICANT: O’Shea & Dyer Solicitors

SOLICITOR FOR THE RESPONDENT: Ms D Drummond
Reaston Drummond Law

INDEPENDENT CHILDREN’S LAWYER: Ms D Falcomer
Keir Steele Waldon Lawyers

Orders on an interim basis pending further order

1. That the Orders made 28 February 2020 are varied as follows:

   (a)Order 2(a) is discharged and in lieu the following order shall apply:

   “On two (2) weekends each school term as agreed and failing agreement the third weekend and seventh weekend from the conclusion of school on Friday to 6.00pm Sunday.  In the event such time falls on a long weekend then time shall commence at the end of school on Thursday or finish at 6.00pm Monday as the case may be.”

   (b)The words “and Christmas school holidays” where they appear in Order 2(b) be deleted and in lieu the following order shall apply:

   “For the end of term four Christmas school holidays 2020/2021 from 2.00pm 27 December 2020 to 2.00pm 24 January 2021.”

2. That the Orders made 2 April 2020 are varied as follows:

   (a)Order 2 shall be discharged and in lieu:

   “That unless otherwise taking place at school on a school day, changeovers shall occur at McDonalds Restaurant, V Street, G Town unless otherwise agreed between the parents in writing.”

   (b)Orders 3(b), 4, 5, 8, 9, 10, 11, 12 and 13 of the said Orders remain in full effect.

3. That both parents do all such things and sign all such documents as are required to ensure the child commences T School from the beginning of term four (4) 2020.

4. That if the child is not able to attend school for any reason, the mother is to inform the father immediately of his inability to attend school and the reason for being unable to attend.

5. That these proceedings remain listed for Case Management Hearing at 9.30am on 11 December 2020 in the Family Court of Australia at Townsville.

6. That the Court date of 7 December 2020 be vacated.

7. That the costs of the Application in a Case filed 21 July 2020 be reserved to the trial Judge.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Antony & Joyce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 947 of 2019

Ms Joyce

Applicant

And

Mr Antony

Respondent

REASONS FOR JUDGMENT

Introduction

1. When the Court made interim parenting Orders on 28 February 2020 in respect of X (aged eight years and referred to in these Reasons as “X”), it was obvious that he was the focus of a strenuously contested parenting dispute between the mother Ms Joyce and the father Mr Antony.  The cross-allegations – one against the other – were numerous and continue.

2. As a result of concerns held by the father as to X’s welfare, in some ways confirmed (in his view) by a family report dated 3 June 2020 but exacerbated, he says, by events subsequent to the family report interviews in May 2020, the father filed an Application in a Case on 21 July 2020 (and amended 15 September 2020) seeking, inter alia, that on an interim basis:

   a)the child X live with him and that the father have sole parental responsibility;

   b)that the child spend every alternate weekend (unsupervised) with the mother, with changeovers for one weekend being at the H Retail (132 kilometres from the father’s home) and for the other alternate weekend at McDonalds S Town (170 kilometres from the father’s home);

   c)half of school holidays and telephone contact two times a week; and

   d)the child “forthwith be enrolled in distance education or W School”.

3. The mother, by her amended Response filed 24 September 2020, sought that the father’s Application be dismissed; that the interim Orders of 28 February 2020 and 2 April 2020 continue, and further sought that:

   “10.The child continues to attend T School commencing Term 4, 2020.

   11.The Father be restrained and an injunction issues, from attending the Mother’s residence or place where she is residing, unless otherwise agreed in writing.

   12.That the Father (and/or his legal representatives) be restrained, and an injunction issues, from providing the Mother’s residential address to anyone or any agency except for Queensland Police Service or Department of Child Safety, Youth and Women.”

4. The Independent Children’s Lawyer (“ICL”), Ms Falcomer, in her case outline filed 17 September 2020 (prior to the filing of the mother’s Affidavit on 24 September 2020) sought orders consistent with the recommendations of the report writer Dr K at paragraphs 102 to 106 which were as follows:

   “102.  Unless the Court can address some of the issues raised in the Evaluations section of this report which in my view are likely to place X at risk for his future development, I recommend the following, outlined below.

   103.    I recommend that Mr Antony have sole parental responsibility for the major decisions and care of X, of which he should make every reasonable effort to keep Ms Joyce informed about.

   104.    I recommend that X live with Mr Antony and spend time with Ms Joyce as deemed appropriate by the Court.  I recommend that whilst X is with Ms Joyce she be restrained from denigration of Mr Antony and involvement of X in Court matters.  I also recommend that changeovers be supervised by an independent third party.

   105.    I recommend that both parents be restrained from denigration of each other in the presence of the children.

   106.    I recommend that X be enrolled in distance education to be supervised by a governess on B Property and that Mr Antony ensure X attends sporting and other special day events at one or more of the schools in the general geographic area.”

5. These being the competing proposals, a contested interim hearing was conducted by telephone on 25 September 2020, with the Court having the benefit of:

   a)considered written and oral submissions from the father’s solicitor Ms Drummond;

   b)considered written and oral submissions from the mother’s Counsel Ms Dart; and

   c)considered written and oral submissions from the ICL Ms Falcomer.

6. The Court felt compelled, on more than one occasion during oral submissions, to remind the advocates that the truncated nature of interim hearings makes it difficult, and often inappropriate, to seek to make findings on disputed facts where no cross-examination is undertaken and all the evidence, including the views and opinions of the family report writer, are not properly tested.  Furthermore, as the Full Court in Banks & Banks (2015) FLC 93-637 makes clear, the Court is not required to undertake a thorough examination of each primary (s 60CC(2)) or additional (s 60CC(3)) consideration when determining what is in the best interests of X, which of course remains the paramount consideration.

7. With an eye to the pathway identified by the Full Court in Goode & Goode (2006) FLC 93-286, some clear facts are not seriously in dispute, particularly:

   a)the parents commenced cohabitation in 2009/2010; married in 2013, and physically separated on or about 5 September 2019;

   b)on final physical separation, the mother moved to G Town with X and his older brother Y, a child born of an earlier relationship (born in 2006) and who has been in the mother’s primary care under final parenting orders made in June 2012;

   c)the family, prior to separation, lived (as the father continues to do) on a sizeable rural property in North Queensland called “B Property ”.  An aide memoir produced by the ICL for the interim hearing says that the distance between the mother’s new residence at J Town and B Property  is in excess of 400 kilometres – with an estimated drive time of approximately four and a half hours;

   d)communication between the parents is ineffectual and before the interim Orders were made by the Court in February 2020 (by consent), limited contact (the father asserts no contact) between X and his father took place.  Since the Orders there have been some difficulties in compliance with the interim Orders;

   e)overarching these parenting proceedings, as well as substantive property proceedings, the parties are engaged in contested family violence proceedings due to commence for a trial in early November 2020 in a local Magistrates Court.  Furthermore, arising from events around the time of separation, the mother was charged with a number of criminal offences, however these charges have now been dealt with by a Magistrates Court, with the mother pleading guilty, and with no conviction recorded;

   f)all legal representatives are of the view that the parenting proceedings (and possibly also the financial proceedings) could be ready for a trial before me in Townsville in the week commencing 1 March 2021.  This is an important contextual factor, as in effect of the 20 weeks between now and the start of a trial in the week of 1 March 2021, there are approximately 14 weeks of school term time (10 weeks in term four 2020; four weeks in term one 2021) and six weeks of school holidays, which the parents agree should be shared.

8. In my assessment, the arguable position of the father (supported by the ICL) for an interim change of residence for X became less attractive when seen in the context of the recent evidence of the mother.  Although Ms Drummond for the father contends that the Court would be cautious in accepting the mother’s recent evidence – seen in the context of past behaviour – much of the criticisms (but not all) of the mother’s past behaviour is answered by the mother, and her responses are not entirely implausible although on full testing may not be accepted.

9. However, for the reasons which follow, the Court is not persuaded that an interim change of residence is in the best interests of X, and the pathway to that conclusion is illuminated by the following matters.

Schooling

1. The child, who had been attending T School since October 2019 (shortly after physical separation), has not attended the school since 28 May 2020 – certainly all of term three.  The mother gives reasons as to why she lost confidence in the teachers and asserted they had not dealt with allegations of bullying.  She also asserts she experienced some difficulties with getting the child to school because of not having access to a reliable car.  The father was rightly concerned about X’s poor school attendance – noting that the child did attend at times when the mother was obliged to keep him at home (the mother not being an “essential” worker).

2. Some of the explanations for the child’s failure to attend school will need to be explored at the trial, as it may ultimately demonstrate the mother has not supported X’s education, as was her duty.  However, the mother says the issues which created problems in the past no longer exist; she agrees to X returning to T School (and in fact seeks such an order) and that she has liaised with the child’s teachers about homework he was to do at home.

3. In the absence of further tested evidence from the principal or teachers at T School, it is not possible to be certain how the child is progressing and whether, as most Queensland students have been challenged by educational disruption this year, X is struggling either in the classroom or with his peers.  The letter dated 14 September 2020 from the principal (annexed to the father’s Affidavit) provides some comfort as to the school’s awareness of various issues at school.

4. A change of residence to the father will involve a change of schooling for X, and in my view, provided he does return to T School and attends regularly, the stability this offers X is a significant factor that supports the mother’s proposal for her retaining interim residence.

5. The new residence of the mother is only 20 kilometres from T School.  The father’s preferred options, if X were to begin living with him, have some initial disadvantages in that:

   a)if he was to begin Distance Education, the father would need to employ a governess to assist.  Although the father indicated he would do so, no arrangements have been made, and X would need to develop a “working” relationship with a new person; and

   b)W School involves over one hour travel; the school knows nothing about him; and he would, if able to make new friends, not be proximate to many of them because of the relative isolation he would experience living at B Property .

Residence

1. The temporary accommodation of the mother and the boys in a shed (without some facilities) in L Town proved problematic.  The evidence relied upon by the father from Mr M (the landlord) and Ms N (the mother’s friend and the school “Lollipop Lady”) are highly critical of the mother and her behaviour.  In response, the mother gives both an explanation for various criticisms and levels some of her own – not an unusual tactic by both parents in this case.

2. I agree with the mother’s submission (at paragraph 44) that her living arrangements since separation were “not ideal”, and whether they were “unavoidable” as a result of her financial circumstances is disputed by the father.  More importantly, the mother now gives evidence (supported by evidence of her mother Ms F Joyce) that she now has moved into a four bedroom home at J Town – some 20 minutes’ drive from T School.  Ms Joyce owns the property and says she has offered the mother a lease for over 10 years at $300 a week (see paragraph 12) and that it is intended to register the lease.  The mother says she will sign the lease.

3. Although the father seems to be somewhat suspicious of this new arrangement, such suspicions can be explored at the hearing.  At this stage the Court sees no reason not to accept the sworn evidence.  It provides stability of accommodation for the mother, X and Y.

Supervision

1. The father raises concerns about X being unsupervised on 21 July 2020 and also 14 August 2020 and further that X “lied” to Police as to his age – to protect his mother from adverse action by Police.  The mother asserts she had made arrangements with Mr M to take care of X when she knew she would be in Townsville for the day.  This is disputed by Mr M.  The Police attendance on 15 August 2020, where they were invited to attend because he had turned off the power to the shed, provides a context as to a breakdown in the relationship (of landlord and tenant) between the mother and Mr M – as there also seems to now exist between the mother and her previous close friend Ms N.  To the extent any of these disputes have any probative value, they are simply triable issues.

2. What is clear however, is that a past child welfare history many years ago relating to this mother means the mother is probably on the Department’s “radar” if she or her children need future support.  In this respect, it is not clear whether the father of Y seriously joins in the father’s criticisms of the mother or is seeking to revisit longstanding care arrangements relating to Y.  The evidence indicates that the father in this case and Y’s father are at least discussing matters.

Contact with the father

1. It is obviously an important triable issue as to whether the mother can support the child’s relationship with the father.  The father points to the difficulties immediately post separation; what he says are the problems with telephone contact and some unilateral variations to changeover venues.

2. I agree that some of the mother’s explanations need to be carefully examined at a final hearing, however considering the hostile communication and intractable conflict, I cannot totally ignore they have both contributed to some of the problems encountered.  The mother and father should be aware, and in these Reasons I reinforce, that the changeover venues set in the Order must be complied with, unless the parents agree to alter the arrangements.  Any agreement should be in writing – either email or text exchanges.  The child is old enough to move from one parent to another without the parents coming into close contact.  I propose to maintain similar changeover venues as currently set in the Orders of 2 April 2020 (Order 2) save where they can take place at school.

The mother’s mental health

1. Although in submissions the father seeks to draw out some concerns raised by a former therapist of the mother over three and a half years ago (see paragraph 19) and relies upon the untested observations of the report writer (paragraphs 20 to 22) to contend that the mother has a diagnosis of Post-Traumatic Stress Disorder and is a risk to the child, considering the parents continued to live under the one roof until 12 months ago, it is difficult to be certain as to the father’s real understanding or awareness of earlier mental health challenges.

2. The Court should always be cautious in “labelling” parents and accepting that a particular diagnosed condition always manifests in a particular form when parenting.

3. Sensibly, and in recognition of the evidence offered in this case thus far, the experienced ICL has arranged for a psychiatric assessment of the parents to be undertaken in early November 2020 by Dr P.  His assessment is expected to be available to the Court (and thereafter the report writer) before the next Case Management Hearing in Townsville on 11 December 2020.  At that time the Court will assess any other urgent issues that may subsequently need consideration at the final hearing.

Conclusion

1. The ICL relies upon the family report writer’s recommendations, but as they articulate, the report writer, whilst expressing some concerns, identifies it is ultimately the Court’s role to determine the disputed facts and then any risks posed by either parent.  It has long been the position that a Judge is not bound by opinions or recommendations formed by a report writer alone (see Hall & Hall (1979) FLC 90-713).

2. For the reasons set out above, dealing with the major concerns the father has expressed with respect to the mother’s care of X, I add the following factors:

   a)The mother has been X’s primary carer since birth and since separation.  He has lived his whole life essentially in the company of his brother Y (save for periods when Y’s education made him less at home).  As Dr K observed, the boys “appeared to get on well” (paragraph 75);

   b)X’s interview with the report writer, recorded at paragraphs 64 to 72 of the family report, does not reveal any preference for where he wished to live (paragraph 69), although there were two themes that came through:

   i)his love of playing cricket with his team/friends; and

   ii)his dislike for the “long travel time” involved in returning to B Property  for weekends, before returning back to G Town.

   Considering the distance between the parent’s homes, I expressed concern about the frequency of weekend contact if it were to occur fortnightly with travel back and forth to B Property .  As a result, I identified an additional proposal on an interim basis, which I refer to later in these Reasons.

   c)The mother did take the child for assessment by Paediatrician Dr Q.  Although no definite diagnosis of autism has been made, Dr Q indicated that he “certainly fulfilled the criteria for a firm diagnosis when seen by Ms R”.  It appears that the general opinion of Dr Q is that X could benefit from an educational assessment (and a referral has been made), and that X should undertake some therapy with a Psychologist “as soon as possible so that one can deal with the problems of socialisation and also coexisting anxiety”.

   This assessment, together with the empathetic response by the teachers at T School (which the mother now accepts), further supports X remaining at that school and playing sport (including cricket) amongst his friends.  This would not easily be achieved if he attended Distance Education or W School.

Orders

1. For the reasons given, it is not in X’s best interests to change his primary residence from the mother (living at J Town) to the father (living at B Property ) on an interim basis.

2. However, neither parent should feel any level of comfort or discomfort with the interim decision, for when all the evidence is properly before the Court at a trial (and tested), a different decision could be assessed as in X’s best interests.

3. In my view, as I raised during submissions, the frequency of visits needs to be reduced.  Ultimately, the father can decide whether he uses significant time over a weekend to travel to B Property  or otherwise remains in a more proximate location.  If the child plays weekend sport, staying in the area makes sense.

4. To “compensate” for some “lost” time, I propose to order that the child spend slightly longer time over the approaching end of term four school holidays – after spending Christmas Day with the mother and his brother.

5. I am not satisfied any evidentiary foundation has been established for making the s 68B restraints sought by the mother.  I accept the current temporary protection orders do not provide any conditions restricting the parents approaching each other.  I am content that the State Magistrate dealing with the domestic violence hearing, if thought appropriate, would so order.

6. For the reasons given, the previous Orders are varied as set out at the commencement of these Reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 30 September 2020.

Associate: 

Date:  30 September 2020