Kane and Bakker (No 3)

[2020] FamCA 852

FAMILY COURT OF AUSTRALIA

KANE & BAKKER (NO. 3) [2020] FamCA 852

FAMILY LAW – INTERIM PARENTING – Where the child is two years and eight months old – Where it is not appropriate to make an order for parental responsibility – Where the child lives with the mother – Where the mother sought orders for the child’s time with the father to be supervised – Where ongoing supervised time is not in the best interests of the child – Orders made for the child to spend graduating time with the father.

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA

APPLICANT: Mr Kane

RESPONDENT: Ms Bakker

INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

FILE NUMBER: SYC 8109 of 2018

DATE DELIVERED: 16 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 21 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITORS FOR THE APPLICANT: Linden Legal

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITORS FOR THE RESPONDENT: Lander & Rogers

INDEPENDENT CHILDREN’S LAWYER: Ms Stidwill

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:
Stidwill Solicitors

Orders

1. The Orders of 21 June 2019 are vacated.

Pending further Order:

1. The child,  born … 2018 ("the child") spend time with the father as follows:

   2.1from the completion of the father's parenting course (noting that the course will be completed on 21 August 2020) to 22 July 2021:

   2.1.1   each Monday from 2.00 pm to 5.00 pm

   2.1.2   each Wednesday from 2.00 pm to 5.00 pm

   2.1.3   each alternate Saturday from 9.00 am to 4.00 pm

   2.1.4   each alternate Friday from 9.00 am to 3.00 pm.

   2.2from 22 July 2021 until 22 January 2022:

   2.2.1   each Monday from 2.00 pm to 5.00 pm

   2.2.2   each Wednesday from 2.00 pm to 5.00 pm

   2.2.3   each alternate Saturday from 9.00 am to 4.00 pm

   2.2.4   each alternate Friday from 9.00 am to 9.00 am Saturday.

   2.3      from 22 January 2022 until 22 July 2022:

   2.3.1   each Monday from 2.00 pm to 5.00 pm

   2.3.2   each Wednesday from 2.00 pm to 5.00 pm

   2.3.3   each alternate Saturday from 10.00 am to 10.00 am Sunday

   2.3.4   each alternate Friday from 9.00 am to 9.00 am Saturday.

   2.4.     from 22 July 2022 to 31 December 2022:

   2.4.1.  each Monday from 2.00 pm to 5.00 pm

   2.4.2   each Wednesday from 2.00 pm to 5.00 pm

   2.4.3   each week from 9.00 am Friday to 5.00 pm Saturday.

   2.5      on special occasions:

   2.5.1   from 2.30 pm to 7.00 pm on X's birthday

   2.5.2   from 9.00 am to 5.00 pm on Father's Day

   2.5.3from 3.30 pm to 6.00 pm on the father's birthday being 12 September in each year

   2.5.4from 9.30 am to 5.30 pm on Christmas Day in even-numbered years until 2022 and thereafter from 11.00 am Christmas Day to 11.00 am Boxing Day in even-numbered years commencing 2024.

   2.6      at such other times as may be agreed upon between the parties in writing.

2. Until 31 December 2022, the mother is at liberty to suspend the child's time with the father provided that she gives the father at least 28 days' notice that make up time is provided in the week prior to or following the suspension of the father's time and provided further that such not occur so as to preclude the father's time on special occasions.

3. Each party notify the other as soon as reasonably practicable, and no later than two hours after the contact with any medical practitioner or hospital of any accident or emergency involving the child which involves medical treatment or hospitalisation whilst the child is in their respective care.

4. Both parents are permitted to liaise directly with the child's pre-school and/or school principals or teachers to obtain any information about the child's progress at pre-school and/or school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending to each of the parents newsletters, school photos and academic report cards and any other correspondence provided to parents directly from the preschool and/or school and these Orders will be sufficient authority to authorise the release of such information to the parents.

5. Changeovers which occur during ordinary preschool/school hours shall occur at the child's preschool/school if X is at preschool/school and all other changeovers otherwise occur at the residence of the parent who has X in their care immediately prior to changeover.

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 Bakker & Kane 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 SYDNEY

FILE NUMBER: SYC 8109 of 2018

Mr Kane

Applicant

And

Ms Bakker

Respondent

And

Independent Children's Lawyer

Stidwill Solicitors

REASONS FOR JUDGMENT

The proceedings

1. Mr Kane and Ms Bakker are the parents of a child, X, who was born in 2018 and is currently two years and eight months of age.  These proceedings concern interim parenting orders.  The principal issues were the duration of and any conditions upon the child's time with the father.

2. The applicant father sought orders that the child commence to spend unsupervised time with him immediately upon his completing a parenting course.  The father had completed this course by the time of the interim hearing on 21 August 2020.

3. The respondent mother required that all of the child's time with the father continue to be supervised and that he meet the whole of these costs.  The mother also sought orders that she be permitted to travel to Country QQ with the child for five weeks in June/July 2021.  I indicated that I would not entertain an application for overseas travel, at a time when COVID-19 restrictions are in operation indefinitely in relation to international travel.

4. The mother also sought interim orders with respect to the child's time with the father, in the event that she relocates to an unidentified location three hours distant from Sydney.  I indicated that I regarded this aspect of the mother's application as a "backdoor" means of achieving a relocation order.  In the complete absence of any evidence as to the mother's proposals in this regard, I declined to entertain any such application.  Of course, the mother is at liberty to seek orders for relocation the child's residence on a permanent basis in a proper manner.

5. The Minute submitted by the father would result in orders which would operate until 2024.  At the interim hearing on 21 August 2020, however, counsel for the father indicated that he sought interim orders which would operate until the end of 2023.

6. The Independent Children's Lawyer ("the ICL") supported the proposal of the father but suggested that, during the initial six weeks, time take place at the upper level of the mother's home while she remained in the downstairs area.  Neither party, however, was prepared to entertain this proposal.

Background

1. The father and the mother, who are aged 56 and 48, engaged in a brief de facto relationship for a period yet to be determined by declaration of the court.  On 23 April 2020 I made a declaration, by consent, as to the existence of a de facto relationship.  The mother contended that the parties engaged in a de facto relationship between April 2017 and 3 June 2018.  The father deposed that the parties "were in a relationship" between April 2017 and August/September 2017.

2. Each of the parties has children from a marriage prior to their relationship.  The father has two adult children, who live with him at his home in Suburb Y.  The mother has a ten-year old son, DD, who lives with her and the maternal grandfather Mr N in her home at Suburb G.

3. The father is a health professional who operates his own practice at Suburb W.  The mother is a finance professional, who is currently on unpaid leave from KK Organisation.  The mother is seeking employment and, at various times, has proposed that she and the child move to Queensland and to an undisclosed location three hours travel from Sydney.

4. In December 2018 the father commenced proceedings in the Federal Circuit Court.  On 18 January 2019 the Federal Circuit Court made orders that the child spend time with the father, under supervision, for three periods each of

   
   

   one and-a-half hour's duration per week pending an interim hearing.

5. On 21 June 2019 the Federal Circuit Court made interim orders that the child spend time with the father at Suburb G Library each Monday and Wednesday and every alternate Saturday under professional supervision.  These orders also restrained the mother from leaving the child in the care of the maternal grandfather.  It appeared to be common ground that the maternal grandfather suffers from anxiety and an alcohol dependency.

6. The mother and the child spent the period 27 June 2019 to 30 July 2019 in Country QQ.  The father alleged that, after their return to Australia, arrangements were made for the child to spend time with him by the parties outside of the then existing orders.  The parties spent time with the child at the mother's home and that they went on outings together as a family.  The father and the mother spent one week together with the child on a holiday at a resort in 2019.

7. The father contended further that the mother left the child in his unsupervised care on multiple occasions between July and November 2019.  The mother denied that the child had spent such unsupervised time with the father but he tendered videos of some of these occasions.  The mother attempted to have these videos excluded but, over her objection, I admitted this material into evidence.

8. The mother raised objection to the father driving the child and made allegations of various incidents which might be described as road rage.  The father tendered video evidence which appeared to establish that the father had driven the child alone, with the consent of the mother, on various occasions.

9. The mother contended that the father arrived uninvited at her home and met her and the child in public places without her prior agreement.  The mother denied that she ever left the child alone with the father but, as indicated, video evidence appeared to suggest the contrary.  The mother did not dispute that she and the child spent one week at a resort in the company of the father in December 2019.

10. On 13 November 2019 the parties signed terms of settlement in relation to final parenting orders.  These proposed orders provided that the parties have equal shared parental responsibility; that the child live with the mother and spend time with the father for gradually increasing day periods without supervision.  The mother suggested that her consent to these proposed orders was contingent upon an unwritten agreement between the parties that she, the maternal grandfather or the child's nanny would be present at all times when she was in the care of the father.  Both parties withdrew their consent to these proposed orders, for reasons which were not clear on the available evidence.

11. During 2019, the child spent time with the father under supervision of staff of NN Services.  Reports for the period 6 March 2019 to 19 June 2019 and from 27 November 2019 to 11 December 2019 were exhibited to the affidavit of the father sworn on 23 December 2019.  These reports presented a favourable picture of positive interaction between the child and the father.  The fact that no contact reports were in evidence for the period late June 2019 to the end of November 2019 provides some support for the father's contention that he spent time with the child without professional supervision, and with the agreement of the mother, at various times during that year.  I did not understand the mother to suggest that the father tendered in evidence an incomplete set of contact reports.

12. On 7 May 2020 the interim orders were varied so as to provide that the child spend time with the father for three two-hour periods per week, in the presence of a nanny.  These orders also provided for the appointment of Ms LL, a psychologist, as single expert.  An order had been made on 20 February 2020 for the appointment of a different single expert but these arrangements were disrupted by the COVID-19 pandemic.  Ms LL prepared a report dated 31 July 2020, which was available for the interim hearing of parenting issues in August 2020.

Consideration

1. No order has been made in relation to parental responsibility and neither party sought an interim order in relation to that matter. Accordingly, each of the parties has parental responsibility for the child pursuant to section 61C of the Family Law Act.

2. Section 61DA(1) provides that, when making a parenting order, the court must apply a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility.  Section 61DA(3) provides, however, that the presumption does not apply in the making of an interim parenting order if the court deems that it would not be appropriate in the circumstances of the particular case.

3. In these proceedings, there are a multiplicity of factual disputes which cannot be determined in the circumscribed context of an interim hearing.  The parties submitted lengthy affidavits and many hundreds of pages of tender bundles.  Having dealt with previous interim disputes between these parties, I have been left with real reservations as to the credit of each of them.  I share this impression of the single expert:

   155....  On what has been presented to this report writer it would appear possible that one or other, or even both parents are being less than candid with the truth about one another and their relationship or that their memories and recollections of certain events are subjective and/or possibly distorted by stress, current legal proceedings, and/or a desire to find a way to make this situation work or gain leverage in this dispute ...

4. For these reasons I conclude that it would be inappropriate to apply the presumption set out in section 61DA(1) of the Act. As there will be no order for equal shared parental responsibility, I am at liberty to determine what parenting orders are in the best interests of the child by reference to the factors set out in section 60CC of the Family Law Act.

Section 60CC(2) factors

1. The child X has two parents who love her and wish to play an active and meaningful role in her life.  The single expert addressed directly the issue of the benefit to the child of a meaningful relationship with each of her parents.  She opined as follows:

   189. X currently benefits from having a meaningful relationship with her mother.  She also derives benefits from the comparatively limited time she spends with her father, currently in a supervised setting where the emphasis is predominantly on play and exploration type activities.  It would be beneficial for X to continue to be able to spend regular time with the father and to continue to develop this relationship.  Indeed, it is considered fundamentally important to X's sense of identity and self-esteem that her relationship with each of her parents continue in a meaningful way.

2. In essence, the mother contended that there is a need to protect the child from risk of harm in the unsupervised care of the father.  The mother suggested, inter alia, that the father suffers from mental health problems and anger management issues and that he abuses prescription medications.

3. The mother relied, inter alia, upon the father's self-prescription of medications in the period 2015 to 2018.  She asserted to the single expert that the father may suffer a panic attack while the child is in his unsupervised care.  The basis of this assertion was unclear and did not appear to rest on any objective evidence.

4. I do not propose to analyse in detail the material advanced by the mother in support of her claim that the father poses an unacceptable risk to the child.  As appears below, there are sound reasons which indicate that her conduct is inconsistent with any such genuinely held belief on her part.

5. The ICL submitted that "it is difficult to reconcile the mother's alleged concerns with her conduct."  The ICL pointed to the mother's willingness to holiday with the child and the father at a resort; her agreement to unsupervised time in 2019 and the final terms of settlement in November 2019.  I share the scepticism of the ICL in relation to the genuineness of the mother's stated concerns as to the child's safety and well-being in the supervised care of the father.

6. The ICL indicated at the interim hearing that she had issued random requests for urinalysis to the father.  The ICL indicated further that these tests returned negative results.

7. The single expert made no recommendation that the father undergo a psychiatric assessment.  She conferred by telephone with the father's treating psychologist, Mr MM and reported as follows:

   184. ...  This report writer notes that the father's treating psychologist Mr MM, who currently provides the father with personal and emotional support, does not consider Mr Kane as presenting in sessions with him, with any evidence of an ongoing or chronic depressive symptoms, an anxiety disorder or violent tendencies.  Nor does he consider it necessary to refer Mr Kane for a psychiatric assessment or mental health review.  In Mr MM's professional opinion Mr Kane has adequate ability to
   self-regulate when upset, frustrated or angry.

1. The single expert identified positive relationships of the child with each of her parents.  She described "a predictable, secure and affectionate bond with the mother, to whom she has formed a primary attachment".  The single expert opined that the child:

   168. … appeared confident and relaxed in her father's presence.  She appears able to use her father as a ‘secure base’ in terms of having confidence, in her father's presence, to learn, explore her world and play.  There are also indications that X is developing the ability to accept reassurance and comfort from her father.

2. In relation to the nature of X's relationship with the father, the single expert opined further:

   168.…On the information available to this report writer, it is not possible to say with any certainty whether or not X has sufficiently developed the ability to reliably use her father as a ‘safe haven’ at times of increased stress or when she becomes (emotionally) overwhelmed or dysregulated.  Nor is it possible to say if there relationship has developed enough to buffer her from the predictable feelings of anxiety X would experience if she were to be separated from her primary attachment figure (i.e. the mother) for extended periods, including overnight time ...

3. The single expert made recommendations in the following terms:

   171....  taking into consideration X's age and stage of development, her care-giving history, her mother's anxiety regarding X's well-being in the father's care and the obvious challenges present in the relationship between the parents, it would probably be best to err on the side of caution and gradually build the time X spends with her father as she moves through toddlerhood, her pre-school years and commences school.  A graduated and slowly increasing arrangement (sensitive to X's developmental gains and familiarity with the father and his home) would be considered optimal in maximising X's potential to develop a secure attachment to the father, whilst ensuring her primary attachment with the mother is not disrupted...

4. The single expert elaborated on her recommendations as follows:

   172. It is suggested that gradually increasing the time X spends with the father during the day would not only allow for Mr Kane's involvement in a diverse range of play and care-giving activities but also ensure that X has the opportunity to become familiar with the father's home and to get to know her extended paternal family, including her paternal half-siblings and the paternal grandmother.  It would also allow X to experience her paternal culture with other persons who share that culture ...

1. On behalf of the mother much was made of a caveat expressed by the single expert in the following terms:

   203.If the court accepts Mr Kane's account of his behaviour and mental health and is confident that his behaviour does not pose a risk to X, then an arrangement that works towards the lifting of supervision would be considered appropriate upon the father completing the parenting course.

   It was thus submitted on behalf of the mother that unsupervised time with the father would place X at unacceptable risk of harm.

2. It seems to me that the logical conclusion to this submission would be that the child could not have the benefit of developing her relationship with the father at any time prior to a trial.  Only at that point could there be an exploration of the veracity of the mother's allegations as to the behaviour and stability of the father.  I reiterate that I share the scepticism of the ICL as to the genuineness of the mother's stated concerns.

3. I am persuaded that, in the best interests of the child X, there should be orders approximately in terms of the Minute submitted by the father and supported by the ICL.  I will make interim orders which operate until the conclusion of the year 2022.

4. I will not make interim orders which provide for more than one overnight period per fortnight for the child in the care of the father.  I am mindful that the single expert cautioned against a rapid increase in overnight time.  She recommended a gradual increase to four/five nights per fortnight, when the child is seven or eight years of age.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 September 2020.

Associate: 

Date:  16 September 2020