Kebbell & Hackworth
[2021] FedCFamC2F 524
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kebbell & Hackworth [2021] FedCFamC2F 524
File number(s): ADC 3786 of 2021 Judgment of: JUDGE BROWN Date of judgment: 18 November 2021 Catchwords: FAMILY LAW – parenting arrangements for a child who is 10 months old – where the parties disagree about the care arrangements for the child – where the parties disagree about who provided more care to the child – where the father withheld the child – where the father seeks a shared care arrangement – best interests of the child – assessment of risk – the legal principles applicable – interim hearing. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 61DA, 65DAA. Cases cited: MRR v GR (2010) 240 CLR 461. Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 18 November 2021 Place: Adelaide Counsel for the Applicant: Mr Dillon Solicitor for the Applicant: Brite Legal Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Angela Ferdinandy ORDERS
ADC 3786 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEBBELL
Applicant
AND: MR HACKWORTH
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The child X born in 2021 live with the mother.
2.The child spend time with the father as follows:
(a)each Monday, Friday and Saturday from 9.00am until 6.30pm;
(b)from 2.00pm to 6.30pm on Christmas Day 2021; and
(c)from 2.00pm to 6.30pm on the child’s birthday in 2022.
3.All handovers take place at the City B Police Station.
4.The parties are restrained and injunctions are granted restraining the parties from:
(a)consuming illicit substances or excessive alcohol 24 hours prior to and during any time that X is in their respective care; and
(b)engaging in paid employment during any period that the child is in their respective care.
5.The parties inform the other parent as soon as is reasonably practicable of any medical condition, significant health issue or illness suffered by X whilst in their respective care.
6.During the period of the adjournment the mother undergo no more than TWO (2) random supervised drug screen tests within 24 hours as nominated to her by the father’s solicitor (at the father’s expense) in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.
7.The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by Ms C.
8.The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the family assessor considers important to the welfare or best interests of the said child.
9.The costs of such assessment and the report arising from such assessment to be borne equally by the parties.
10.Further consideration of the matter is adjourned to 16 February 2022 at 9.30am for directions NOTING the proceedings will be conducted face to face at Court in Mount Gambier.
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 a pseudonym Kebbell & Hackworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE)JUDGE BROWN
PREAMBLE
The reasons for judgment were delivered orally immediately following the hearing between the parties concerned. One party has requested that they be transcribed. This is the relevant transcript, which is largely verbatim.
However, incorrect spellings of proper names have been corrected, headings inserted and errors of syntax and expression have been amended, arising from the ex tempore manner of their delivery have been rectified and an effort made to render the orally delivered reasons amenable to being read.
INTRODUCTION
It is about five o’clock on the Thursday afternoon of the circuit I do regularly to Mount Gambier. It is a fairly busy circuit, and I have a lot of demands on my time, during it.
I have to do deal with the work in the circuit expeditiously because there are usually a lot of matters and, from time to time, I have to deal with and fit in urgent matters, so I have to make sure there is time to deal with urgent cases.
This is an urgent matter, and for that reason I am going to deliver my decision orally. I have not gone away and had an opportunity to write something up, but I think it is more important that the parties hear what I have to say and I tell them face to face what my decision is.
The parties to the proceedings are Ms Kebbell and Mr Hackworth, and they are the parents of a very little girl whose name is X. X was born in 2021.
X is, on my calculations, about nine and a half months of age, so she is a very little girl, and I am sure she is delightful, because most babies of X’s age are delightful, and in many ways it is pretty sad that I have to make a decision about such a little baby, and rest assured I would prefer not to have to make a decision about her.
The reality is that quite possibly the two of you will be involved with one another as X’s parents until 2039, when she will be eighteen years of age. I hope to be alive in 2039, but there is a fairly good chance I will not be.
It is a long time, and I have to be very careful that I do not make your relationship with one another more difficult than it already is. It is for that reason, I don’t want to make the relevant decision, as it is impossible for me to make an order that is going to keep each of you entirely happy and this, of itself may delay you developing a more effective relationship as parents.
The law about children is in one sense simple and in another sense incredibly complicated, and I will try and tell you this afternoon what the law is and explain to you why I am making the decision in the way I am.
This is what lawyers call an interim decision, and as you will appreciate, all I have read is the affidavits, which each of you have prepared. I have not seen either of you in the witness box answering questions about what you have done, and what you have said, and all sorts of things. I do not think I have heard either of you say a word, other than you said, “This is Mum,” and you said, “This is my employee,” so I do not know, other than looking at you, what sort of people you are as human beings.
I would hope and would expect that you, like most parents, love your daughter and you want the best for her, and you have that in common, but as is apparent, you disagree about all sorts of things, particularly about what have been the recent arrangements of X’s care.
I cannot resolve the issues of fact just by reading affidavits. What the law says is that I have to read all the material, identify what you disagree about, and concentrate on what you agree about, and then see what sort of a picture that gives me, but at this stage the evidence I have is limited.
In particular, at this stage, I do not have a Family Report from a psychologist who has seen X personally and who can advise what sort of a baby she is and how resilient she is, and one of the issues that you have, which I cannot really resolve, is how she has coped with what has happened over the past few months.
By way of background, I understand Ms Kebbell, whom I will call the mother in these orally delivered reasons for judgment, is about 27 years of age, and I think she has got her own business in the beauty industry.
Mr Hackworth, or “the father” is a little older. He was born in 1986, so he is about 35 years of age, and he has got a senior position in the fishing industry. The parties separated in fairly traumatic circumstances, I think, in June of 2021, when X must have been quite a little baby, obviously.
People break up. It is not my role or indeed my entitlement to make findings of fact about why the parties broke up or whatever the reason is. People do break up, but, as I say, to a certain extent you are linked with one another because of your role as parents.
What happened after that is a little bit controversial. There is no dispute that after X was born, she was breastfed. I am not an expert in breastfeeding, but it is a significant thing that a child is breastfed, I think. However, that stopped when the child was about four and a half months old, and the parties disagree about why that was so.
Clearly, when X was born, it was a great life change for both the father and the mother. Overlaid with that was the separation, and it is the mother’s position that there was an ad hoc arrangement after they separated for each of them to spend regular periods of time with the child. Where the parties fundamentally disagree is who was the child’s primary carer. There is much focus in these types of cases on who was the child’s primary carer.
It is basically a phrase that comes into the literature from about the 1950s, 1960s onwards, and there is no delicate way to tell you about primary attachment, but I will do the best I can. We evolved from apes. Everybody agrees with that, some people do not, but I think it is generally accepted we evolved from monkeys on the African savannah, I mean, I do not know how many millions of years ago.
The African savannah is a fairly dangerous place, and being human, we do not have big teeth. We do not have scales. All we have got is our brains and our wits to survive. Human beings have long gestation. Their pregnancy takes nine months. Then children, when they are born, unlike some other mammals, are extremely defenceless. So they cannot look after themselves.
So what a primary attachment is, in evolutionary terms, is that children learn to clutch onto somebody to look after them, to protect them, and if you have ever been to the zoo, you might have seen some baby chimpanzees, who cling onto their mother. That is what primary attachment is all about, and there is some controversy about how strong it is in humans, but I am not going to enter into that controversy now, but clearly breastfeeding is part of the primary attachment because, you know, you clung onto Mummy if you are a chimp so you can be close to the breast, but there has been much evolutionary water under the bridge, and I am not putting myself out as an expert.
When experts give evidence, particularly with young children, they emphasise the importance of a child’s primary attachment, and they indicate that there are dangers of what is called multiple attachments that lots of people get involved, and that may lead to the child becoming insecure, clingy, whatever.
In this particular case, the parties disagree about who provided more of the care of the child. It is relatively clear they both worked, as they are entitled to. A lot of parents in this day and age do work, and children get by, and I read somewhere that X is a delightful child. She is sleeping well, and so on.
Anyway, the parties in the early stage of their separation, perhaps somewhat uneasily, worked things out, but things went wrong, and they went wrong about 31 July. The father came to the mother’s home to deliver the child in the early afternoon. He alleges that the mother was partying – I will use the expression that was used by the lawyers, I think. There was another person there in the house.
Anyway, there was an unhappy situation, and the father – I think there is no dispute about this – decided that X was at risk in that household, and thereafter he withheld the child from the mother.
What effect that had on X, I really do not know, but X is not in a position to say what was right or what was wrong. She is a little baby. All she knows is that, you know, she is seeing Mum and Dad relatively frequently, and then there is a period of time when she does not see her mother.
What the emotional consequences for her of that, I really do not know, and then the mother, as she is entitled to do, brings her application. It is her position that the fact that the child was withheld for about a fortnight, when up until that point she had been seeing her mum, you know, fairly regularly and there was an element of breastfeeding indicates that there was some highhandedness from the father and on focus on X’s needs.
Again, whether that is right or whether that is wrong, I do not know, but it is a fact, I think, there was a delay and X did not see her mother, whilst the court was engaged. The thing about getting into court is that there is a process. You all know about the process. You have got to get a lawyer, you have got to get the forms done, and you have got to get the money together. It costs a lot of money.
Anyway, the mother got her application, and it came into to court, and the parties reached an accommodation, as they frequently do, on the first day, because from everyone’s point of view, people want to manage the situation, and the parties agreed on a shared care arrangement.
I do not recall what I was told on the first day and I do not know what I said, but to a certain extent, if parties agree on something, I am not going to stand in their way, but I can tell you I would be a little uncomfortable with a little infant being in a shared care arrangement, because whether you agree with it or not, Mr Hackworth, there is significant controversy about shared care for little children, because they can find it difficult, as they cannot understand time and how it is divided up.
They cannot understand if you see Mummy one minute, and she goes away for a day, you are going to see her again, and same with you, and the usual rule is children do better if they have a primary attachment, and they spend a lot of time with the other additional attachment. Whether you agree with that or not, I do not know. That is a matter for you.
Anyway, the matter came into court, and I decided that I would get some more information from the court counsellor. That was the best I could do in the difficult situation. I think the parties probably agreed on it. I am not sure.
So I got the report from Ms D who interviewed the parties over the Internet on 11 October 2021, and that was not ideal. I agree it was not ideal, but it was the best that could be done, and it was an emergency, and it was an emergency from the mother’s point of view because she just wanted to re-engage with X, I suspect.
Anyway, so I got the report, and I concede that I have not seen Ms D in the witness box, and she may be wrong about all manner of things, but she met each of the parties, and so to a certain extent she has got an advantage over me in that she talks to each of you and makes her appraisals, and she said:
Mr Hackworth’s decision to withhold X from her primary caregiver appears to have changed the parties’ co-parenting relationship. It has been fractured ever since.
With the benefit of hindsight, there is no doubt that is the case, because up until that stage, you were working things out. Now, that has all gone to hell in a hand basket, which brings me to where I began, that it is in everybody’s interests to see if you can get it back on track because, to a certain extent, you have got a long way to go, each of you.
I do not want to make anything worse than it is, but I have got to make a decision, and it is really a zero sum game. It is either A or B, and the problem with those types of decisions is that I do not want to create a winner and a loser, as I want people to focus on the future rather than the past, and I will tell you a little bit about the law in a moment.
Ms D said, “Look, there is a problem here. The relationship is fractured because of what happened on 31 July,” and I cannot make findings of fact about who was in the house and what they were doing, and nobody has been charged with anything about drugs although that is the import of the father’s case.
The only thing I have got is the hair follicle test, which the mother provided. This is a test in which – they cut off a few centimetres of a person’s hair, and they analyse it and see if there is illicit drugs.
The science of that – if you are interested, and as I understand it – and, again, I’m not a pharmacologist – is that when people take amphetamines or smoke cannabis or do whatever, the substance is deposited in the creatine, which is your fingernails and your hair, so it cannot go away until your hair grows out.
But as with many things, there is various dispute between the scientists as to how accurate it is, but people ask for these tests, and they are routinely done, and that negates any illicit levels of amphetamines, cocaine in Ms Kebbell’s hair, but whether it was imprudent of her to do what she did on the day, again, I am not sure, but there is no evidence that that in itself X has come to any harm. Everyone reports that X is a happy, cheery baby.
In Ms D’s view Mr Hackworth presented as intense and serious. There is nothing wrong with being intense and serious. He wanted to achieve what was recommended as best for X, and that is good. I mean, nobody wants what is worse for their daughter, I would hope.
He said, from his perspective, he researched every aspect of the food he fed X and that Ms Kebbell had a lackadaisical attitude to X when it came to food. Well, look, that may be so. I do not know, but there is no suggestion that this baby, X, is not putting on weight properly. No one has suggested that. I do not have a report from the paediatrician or anything, and the mother’s view is that she is doing okay.
It is said by Ms D that Mr Hackworth subtly denigrated Ms Kebbell at times and suggested that he could provide a higher standard of care for X. Ms D thought he was focused on achieving parity of time for X, and I will come back to the issue of parity of time because that is primarily a legal issue, and I will come to that in a moment.
To Ms D, Ms Kebbell presented as child focused in her discussions in the concerns and issues that she raised about X and X’s needs. She didn’t denigrate Mr Hackworth but appears concerned about X and how X was coping now and how X would cope with arrangements in the future. She also presented as supportive of X’s relationship with Mr Hackworth as long as it was developmentally appropriate.
This is one of the themes of this case. It is not said that prior to this court’s involvement that Ms Kebbell said, “You can only see X if there are five relatives present and I am there and it is for 20 minutes,” or anything like that. No suggestion of that. Ms Kebbell has supported a relationship between X and her father.
The mother’s position is that after what happened at the end of July and thereafter, it is her apprehension that X has become emotionally distressed or is clingy, and that has been categorised as separation anxiety.
Again, Mr Hackworth has a totally different view. He says she is a bouncy, happy baby. Again, that is an issue I really cannot definitively resolve, but I still have to make a decision, and Ms D indicated that being withheld from her mother for that fortnight or so would undoubtedly have caused X a distress, and she does not think that was a good thing, and she gives some expert evidence, which is obvious. The child’s brain is rapidly developing. She does not have a sense of time, and Ms D thought that what Ms Kebbell said about her account of the child being distressed was consistent with her routine being disrupted.
So the issue about primary care, the issue of breastfeeding, so on and so forth, I cannot resolve that, but on balance it seems to be Ms D’s view that it is more likely than not that Ms Kebbell was the child’s primary carer, and I have to be careful because a father can be a child’s primary carer. No doubt about that, but I have got to look at what is more likely than not in the overall construct of this.
Ms D said:
Ideally, X is likely to benefit from an opportunity to spend regular time, not overnight, to maintain the foundation of relationship.
In general terms, Ms D found favour with Ms Kebbell’s proposal, and she thought that would achieve a solid foundation of the father-daughter relationship, but overnight time might be stressful.
So overall, Ms D said the viability of the current arrangements was questionable, and they might harm X, and that is the mother’s position. The parties sensibly today have agreed that there should be a Family Report, and that would be very helpful, but Ms D is more in favour, I think, of X living more with one parent and seeing the other parent regularly during the day and that parent should be the mother. Ms C is going to prepare the Family Report.
THE LEGAL PRINCIPLES APPLICABLE
Now to the law, and as I said to you, the law is both simple and complex. Everybody knows one thing about the Family Law Act 1975 (Cth) (“the Act”), and that is the best interests of the child are the paramount or most important consideration. Everybody knows that, but that is just the start.
I have to look at the principles that underpin the Act, and if you are interested, they are contained in section 60B of the Act, and I will try and summarise them, but there is quite a few of them.
I have got to ensure the benefit of children having the benefit of both their parents being meaningfully involved in the child’s life. I have to protect a child from physical or psychological harm, and I have to ensure that children receive adequate and proper parenting. At the end of the day, it is children who have all the rights. They have the right to have a relationship with their parents. They also have a right to be safe.
Now, how a court determines what is in the best interests of a child depends on a long list of matters in section 60CC of the Act. They are divided into two groups; the primary considerations, and a longer list of additional considerations.
The two primary considerations, which pick up the principles and objects of the Act. I have got to consider the benefits to the child of having a meaningful relationship with both of the child’s parents. That is what it says: meaningful.
It does not say anything about time. It just says “meaningful”, and I have got to protect a child from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations, there are about 14 of them. A lot of them are not relevant to a child of X’s age, because no one knows what her views are. She is too little. She does not talk. You have got to think of the nature of her relationship with each of her parents, and it seems she certainly has a relationship with both her mother and father, and I suspect, given that Mr Hackworth’s mother is here, that there is a relationship with a grandmother. Maybe there is other grandparents. No one has said very much about that.
I have to think about the capacity of each of the child’s parents to provide for their needs and also – and this is significant with a child of X’s age – I have got to think of the child’s age, the maturity of the child, because clearly different things apply to different children, you know, 15 year olds, you would think they can open a can of baked beans. X cannot open a can of baked beans, so her age and mental development has to be significant. Okay.
The Act is complicated, and I will tell you in basic terms why it is complicated. It is complicated because everybody who has anything to do with the Family Law Act thinks it is either in favour of men or it is in favour of women, and previous governments of the day have fiddled with it to try and make people more happy with it, and that has made it more complicated. So there is this issue about equal time, and everyone goes on about equal time, and the law does deal with equal time, and I will tell you how it works.
There is a presumption in the Act – and it is in section 61DA. There is a presumption – and you know what a presumption is, it is presumed, unless otherwise, that it is in the best interests of the child that his or her parent should have what is called equal shared parental responsibility.
What does equal shared parental responsibility mean? Well, it is about making decisions for a child, major, long-term decisions: education, health, where you go to school, and the like. It does not deal with time specifically, so I am sure you both want to make decisions about X, but at the moment there is probably not a whole lot of decisions to be made other than maybe when she goes to bed and whether she has a nap in the morning or whether she has a nap in the afternoon or whatever, because X’s focus at the moment is developing and getting to know the world.
So what follows from the presumption? Well, the first thing you have to know about the presumption is that it is rebuttable. That means it can be knocked out, and if you want to know where that appears, it’s in section 61DA.
The presumption is rebutted if it is not in the best interests of a child that his or her parents have equal shared parental responsibility, there is reasonable grounds to believe that a child has been exposed to family violence, neglect or abuse, or at this interim stage, it is just not practical. I have got to think, do I apply the presumption, and is it in the child’s best interest.
Now, if I do apply the presumption, and this is section 65DAA, I have to consider equal time, and I have to think about substantial and significant time, but the High Court in a case called MRR v GR has said – and the law says it – that you have to have two green lights to have equal time.[1] It has got to be in a child’s best interest, and it has got to be reasonably practicable to put into effect, and they define what is reasonably practical in the Act. That is in section 65DAA(5).
[1] MRR v GR (2010) 240 CLR 461, 466 [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
So what does that say? I will read it to you. I have to think how far apart the parents live from each other, you know, if you live in opposite sides of Sydney or Brisbane, or one lives in Townsville and the other lives in Cairns, you cannot really do equal time, so you live reasonably close together:
·The parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents.
So at the moment, maybe not the greatest. I do not know:
·The parties’ current and future capacity to communicate with each other and resolve difficulties.
Well, to a certain extent, you are here with me resolving difficulties, so that may be not so great:
·The impact that an arrangement of that kind would have on the child.
And it is the mother’s position that it is not working anyway, but that is about equal time. What does substantial and significant time mean? And that is also defined in the Act. It’s:
·Time that the child spends with the parent which includes both days that fall on weekends and holidays.
Well, that is sort of irrelevant for X, because she does not have that sort of life. She does not have a school. Every day is the same to her, so that is sort of irrelevant:
·The time that the child spends with the parent that allows the parent to be involved in the child’s daily routine and the occasions that are of particular significance to the child, time that the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It comes back to meaningful involvement. So after Ms D published her report, Ms Kebbell brought an application in a case, and I think she did that on 11 November 2021, which is last Thursday, as I say, and she proposes that the child live with her. She does not say anything in her application about the presumption, but I have to tell you a lot of lawyers have a little bit of difficulty with all that sort of stuff, but never mind.
She further proposed that X spend time with her father Monday, Friday, Saturday from 9:00 am to 6:30 pm, so that is three days a week, and the longest the child would go without seeing her father would be Tuesday, Wednesday and Thursday, so three days.
Now, the parties no doubt will disagree, but it is my perception that this arrangement would allow the child, given her age and development, to have a meaningful level of relationship, with her father, and given her age, it is not too far away from substantial and significant time, notwithstanding the obvious deficits in the parties’ relationship with one another.
At this stage I have some concerns that equal time is just not in the child’s best interests, and as I said, that has to be satisfied before we have an equal time arrangement. Accordingly, at this stage, I consider this would not be the best outcome for X.
I am not here to keep everybody happy or placate anybody, and, as I say, it is the father’s position that we just wait and see what Ms C says, and I suppose I could do that, but at the end of the day, that will be a further delay. I have some concerns that to wait until the Family Report is done would not be helpful to X, given her age, which is one of the primary considerations, and each party has said to me – and I take it seriously – that when X is with each of them, that he or she will not work or be in paid employment. I will make an order to that effect.
At this stage I think it would not be appropriate to apply the presumption at this interim stage. On balance, it would be best for X to live mostly with her mother, particularly at night time and see her father regularly during the day. I hasten to reiterate that I am not deciding this case for all time. I am just waiting to see until there is further information.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 8 December 2021
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