Kinnard & Pickart
[2023] FedCFamC1F 366
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kinnard & Pickart [2023] FedCFamC1F 366
File number(s): BRC 3206 of 2021 Judgment of: BAUMANN J Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the parents agree for one of the children to live with the father in accordance with her expressed wishes – Where the youngest child’s residence is contested – Child has significant difficult behaviour management issues – Weight to be given to child’s wishes – Where the father’s parenting style is more likely to support the child – Child to live with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Division: Division 1 First Instance Number of paragraphs: 76; 3 in addendum Date of last submission/s: 4 May 2023 Date of hearing: 3 and 4 May 2023 Place: Brisbane Counsel for the Applicant: Mr R Galloway Solicitor for the Applicant: HCM Legal Counsel for the Respondent: Mr S Casey Solicitor for the Respondent: Jurgensen Horne Lawyers Counsel for the Independent Children's Lawyer: Mr J Ashcroft Solicitor for the Independent Children's Lawyer: HM Lawyers ORDERS
BRC 3206 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KINNARD
Applicant
AND: MR PICKART
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
18 MAY 2023
THE COURT ORDERS:
1.That subject to the following Orders, all previous parenting Orders and parenting plans be discharged (including specifically Order 8 made 28 October 2021).
2.That the parents have equal shared parental responsibility for all long term decisions affecting the children, X born 2010 and Y born 2011 (collectively “the children”).
3.That the children live with the father, with Y to change residence as agreed before the commencement of term three (3), 2023.
4.That each parent be responsible for day-to-day decisions concerning the care and welfare of the children when the children are in their care.
5.That unless agreed between the parents:
(a)X shall spend time with the mother at all reasonable times X requests, and the father shall facilitate such time; and
(b)Until Y’s residence changes pursuant to Order 3, the current interim Orders for Y to spend time with the father will continue and then from the change of residence Y shall spend time with the mother each alternate weekend from after school (or 3.00pm) Friday to before school (or 9.00am) Monday.
6.That the children communicate with the mother by telephone or facetime at all reasonable times they request, and the father shall facilitate such communication.
School holiday
7.That the arrangements at Order 5 herein be suspended during school holiday periods, and the children shall spend time with the parents as agreed between the parents, but failing agreement on a week about basis, with the children to spend time with the father for the first week (and each alternate week thereafter) in odd numbered years and the second week (and each alternate week thereafter) in even numbered years.
8.That for the purposes of Order 5, the school holidays shall be deemed to commence at the conclusion of school on the last day of the school term, and shall be deemed to conclude at 5.00pm on the day prior to the commencement of the next school term.
9.That following the conclusion of the school holiday period, the usual care arrangements in accordance with Order 5 will resume as though there had been no interruption by the holiday period.
Christmas
10.That notwithstanding any other order contained herein, the children shall spend time with the parents during the Christmas period as follows:
(a)In even numbered years with the father from 12.00pm Christmas Day until 3.00pm Boxing Day;
(b)In odd numbered years with the father from 3.00pm Christmas Eve until 12.00pm Boxing Day; and
(c)All other times with the father.
Special days
Father’s Day and Mother’s Day
11.That unless otherwise agreed in writing, the children shall spend time with the father from 3.00pm on Saturday immediately before Father’s Day to 6.00pm on Father’s Day.
12.That unless otherwise agreed in writing, the children shall spend time with the mother from 3.00pm on Saturday immediately before Mother’s Day to 6.00pm on Mother’s Day.
Children’s birthdays
13.That unless otherwise agreed in writing, on the children’s birthday the children shall spend time:
(a)if on a school day, with the parent they are not ordinarily spending time with from 4.30pm until 6.30pm; or
(b)if on a non-school day, with the parent they are not ordinarily spending time with from 8.00am until 12.00pm.
Changeover
14.That unless otherwise agreed in writing between the parents, changeover is to occur at:
(a)the children’s school on a school day; and
(b)Suburb C Police Station on a non-school day.
Communication
15.That the children be at liberty to communicate via telephone/video call with the parent they are not in the care of at all reasonable times they request.
16.That unless otherwise agreed in writing, the children communicate with each of the parents via facetime/video call with the parent they are not with each alternate week on a Wednesday at 5.00pm, with the parent they are not with to initiate the call.
Specific issues
17.That the parents shall communicate about parenting issues using an agreed electronic means of communication and failing agreement then by either the Cozi application or Our Family Wizard.
18.That pursuant to s 121 of the Family Law Act 1975 (Cth), the parents have leave to provide their mental health and psychologist provider/s with a copy of the family report prepared by Ms D dated 13 March 2023.
19.That the father ensure X continues attending upon her counsellor or psychologist as required.
20.That the father ensure Y continues attending upon his counsellor or psychologist and or paediatrician and follow all their recommendations and treatment plans.
Exchange of information
21.That the parents keep each other informed of their contact details including residential address, email address and landline telephone (if any) and relevant mobile telephone number/s for the children and notify the other parent of any change within forty eight (48) hours of the change.
22.That within seven (7) days, the parents provide each other with the names of the children’s medical and allied-health providers.
23.That the father keep the mother informed of the contact details of the children’s treating medical and allied-health providers.
24.That each parent may confer with the children’s medical and allied-health providers and have access to the children’s information and records provided that the parent requesting access to the information or records is solely responsible for any costs associated with such request.
25.That these Orders shall be sufficient authority and direction for the children’s medical and allied- health providers to provide each parent such information or records as they may request at the requesting parent’s expense.
26.That the parents ensure that both parent’s details are listed with the children’s school so that both parents can access the children’s information and records.
27.That these Orders shall be sufficient authority and direction for the children’s school/s or other educational provider/s to enable each parent to access copies of the children’s school progress and behavioural reports and all school curriculars at the requesting parent’s expense.
Injury and illness
28.That in the event either of the children sustain any serious medical problem, injury, illness, medical emergency or requires hospitalisation, the parent the children are with shall immediately inform the other parent by telephone and confirm the details by text message as soon as is reasonably possible, but not later than one (1) hour.
29.That the parents keep each other fully informed of any medical matter affecting the children while the children are in that parent’s care, and will inform the other parent about any medical matter in their electronic communication with the other parent in accordance with Order 17 herein.
Restraints
30.That the mother ensure the children are in the presence of a responsible adult at all times they are in the presence of Mr B born 2003, and ensure they are not left alone with him.
31.That the mother not to bring the children into contact with Mr E, and the mother shall ensure that whilst the children are living with her, Mr E is not to attend her residence.31.That neither parent shall denigrate the other parent, their family, or their parenting, or allow the children to be in the presence or hearing of any person doing so.
32.That neither parent discuss any adult issues or these court proceedings with the children or permit the children to be in the presence or hearing of any person doing so.
33.That neither parent consume alcohol to excess, meaning not above the legal driving limit, or allow the children to be in the presence of any person adversely affected by alcohol.
34.That each parent refrain from using illicit drugs or being under the influence of illicit drugs while the children are in their care.
35.That the parents ensure the children:
(a)are not in the presence of any person under the influence of illicit drugs or excessive alcohol;
(b)are not exposed to drug paraphernalia; and
(c)are safely removed from situations referred to in Order 43(a) and 43(b) above.
Alternative dispute resolution
36.That in the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a parent that it should be varied), the parents shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parents, and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the parent raising the dispute shall nominate three (3) FDR practitioners, one (1) of whom shall be chosen by the other parent within fourteen (14) days.
37.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Kinnard & Pickart has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The Applicant mother, Ms Kinnard (now 36 years of age), and the Respondent father, Mr Pickart (soon to turn 42 years of age), commenced a relationship when the mother was barely 16 years of age. By the time the mother was 17 years of age, the couple had conceived their first child, Mr B, who was born in 2003. Two further children were born to the relationship and it is the parenting arrangements of those children that the Court has been asked to determine, in circumstances where the parties have been unable to agree on what orders are in the children’s best interests.
I acknowledge at the outset the assistance the Court received from Mr Ashcroft of Counsel on behalf of the Independent Children’s Lawyer, Mr Casey of Counsel on behalf of the father, and Mr Galloway of Counsel on behalf of the mother in this difficult case.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
COMPETING PROPOSALS
Competing proposals of the parties by the time of final submissions in this matter were heard on 4 May 2023, were identified as follows.
X
In respect of the child, X, the parties agreed that she should live with the father where she is currently residing and spend time with the mother. Although at different stages of the case proposals for prescribed time arrangements had been set out, by final submissions I am satisfied that both parties agreed, as is occurring at this time, that X could choose how and when she spends time with the mother. The evidence at the hearing was that she is spending significant time with the mother – estimated by Counsel for the mother at around 40% of her out of school time.
Y
The case significantly turned then to what orders were in the best interests of the younger child, Y. The mother’s proposal is that the child live with her, spend prescribed alternate weekends and holiday time with the father, and that she be responsible for managing his treatment plan supported by NDIS the full details of which can be found in annexures to her trial affidavit. Importantly, she says it is in the best interests of Y that he continue to attend the G School which is situated in close proximity to the mother’s home with him beginning secondary/middle school in 2024. She has identified the F School as the appropriate feeder high school for students from G School and the one that she says is appropriate for Y to attend.
The father’s position is that Y should immediately begin to reside with him. It was ultimately accepted by the parties that it would be a necessary consequence of a change of residence to the father that Y would move from G School to H School. For his secondary year in 2024, he would feed into the J School. The father proposes that orders be made for Y to spend alternate weekends and half of school holidays in the mother’s care. By the end of the submissions, it was my understanding the parties agreed that they should share equal parental responsibility for major long-term decisions for Y.
The Independent Children’s Lawyer had expressed a preliminary position in the initial case outline filed on 26 April 2023 and essentially adopted that preliminary position in final submissions after hearing all the evidence. The Independent Children’s Lawyer, it should be acknowledged, broadly adopted the recommendations of the family report writer, Ms D, which were effectively that Y should live with the father, but spend time with the mother.
BACKGROUND
This matter has had a significantly difficult background. To explain the events which have occurred, the following background represents findings. Statements of fact hereafter should be regarded as findings of fact.
As earlier indicated, the parties’ relationship commenced when the mother was around 16 and the father some five years older. After the birth of Mr B, X was born in 2010. She is now 13 years of age. Y was born in 2011. He is now eleven and a half years of age. It is difficult to be absolutely certain about the nature of the relationship until some form of separation occurred in December 2015, although I am satisfied on all the evidence it was shaped by dysfunction; excessive and illicit drug use by both parents and consequential mental health challenges.
Both Counsel did not seek to examine through cross-examination much of the early history nor were they required, in my view, to do so. Some form of separation occurred in December 2015, the parties having earlier married in 2014. There was no court intervention after separation and the arrangements for the children to spend time and live with the parents moved from periods where they were in one party’s primary care to periods where they were for some reason occupying the same home again. Be that as it may, by late 2020, there was an incident that the mother describes where she says the father assaulted her and he caused the mother, it seems, to change what were generally consensual arrangements for parenting before that date.
I should say that the evidence is that the mother at least some time during this period had commenced a relationship with Mr E. He says in his evidence that the relationship began some seven years ago (namely in about 2016). The father also re-partnered for a time with Ms K. In early 2021, the mother obtained a temporary protection order, which was ultimately made a final order in her favour naming the father as the respondent.
Notwithstanding that Order and perhaps around the same time, the father took control of the children’s living arrangements from around early 2021 until Orders were ultimately made, I am satisfied the children spent little time with the mother during that period. The father’s evidence and statements to family report writers was that this occurred so as to protect the children from the mother’s extensive drug use and irrational behaviour stemming from that drug use.
In March 2021, the mother filed the first Application that has been filed since separation some five years earlier. A few days later, the mother filed an Application in the proceedings seeking a recovery order, namely that the children live with her. On 23 March 2021, the matter came before Judge Vasta in Division 2 when his Honour made Orders that the children live with the father and that the children spend time with the mother “as can be agreed”. There is further evidence at that time of involvement shortly thereafter by the Department of Children, Youth Justice and Multicultural Affairs (“the Department”). I am satisfied that, at the time of the Orders of Judge Vasta, the mother and her partner, Mr E, were using illicit substances, the extent of which is difficult to determine.
Exhibit 1 is a record of an assessment by the Department made 19 April 2021. The Department assessed the children to be safe in the care of the father. The Department recorded at least a general view expressed by the children that they only wanted to have contact with the mother when she was “better”. Subsequently, on 19 July 2021, the mother was interviewed by the Department. Her interview was put to her in the witness box. It is set out in Exhibit 2. It speaks for itself and in respect of her drug use, the following comments are recorded as statements by the mother, namely inter alia that:
•Drug use has been an issue in the past for me. I use [an illegal substance]. I would test positive if I do a drug seen (sic) today. I use at a friend’s house so I don’t use in front of [Mr B]. I used on Friday; [Mr E] too.
•Everyday I just want to die because I can’t see my kids. I have thought about how I would kill myself.
•The best I had done is five years of not using. I have been trying to do it for the kids and the Court case.
•[Mr E] went seven days. He is not liked with supports. I am linked with [M Support Service] and start tomorrow. I will have weekly drug testing and after four weeks, I will be transferred to a more intensive program because I have been so dedicated to changing.
•Have got a mental health care plan, but cannot afford to go to the visits. Out-of-pocket is about $50.
•There is nothing to escape, and so I pick up the [drugs] and it is all okay.
•I am not using everyday any more – we cannot afford it.
•I use about three times a week – we get [some] and [use] it over a couple of sessions – about [half] each between me and [Mr E].
Notwithstanding the clear evidence now available of the mother’s continued drug use, when the matter came before the Court on 28 October 2021, very significant Orders were made by the learned Senior Judicial Registrar. Certainly the mother says that, in or about mid-2021, she undertook the drug relapse program, however, her own evidence is that she continued to use drugs for some months after, perhaps at a reduced level, but certainly after the relapse program had been undertaken by her. I will return to the subject of drug use of both parents shortly.
The Orders made by the Senior Judicial Registrar on 28 October 2021 had the effect of changing the residence of the children to the mother. Furthermore, the children were to spend prescribed time with the father. As will be mentioned further in these Reasons, Order 8 of the Orders made by the Senior Judicial Registrar expressly stated that:
8.The mother is not to bring the children into contact with the mother’s former partner, [Mr E].
The terms of the Order, without the benefit of any reasons, I infer suggest that the Court at that stage was concerned about Mr E and may have had the view that he was a former partner, not a continuing partner.
In late 2021, police were involved with the family (see Exhibit 11). There was conflict identified by the police on that occasion between Y and Mr E, seemingly in relation to some misbehaviour by the child and access to his mobile phone. It was clear that Mr E was having contact with the child in some form at that time. It was clear that he was taking a role in seeking, perhaps not unreasonably, to manage Y’s behaviour.
On 11 February 2022, as a result of the Orders made by the Senior Judicial Registrar, Court Child Expert Mr L conducted interviews for a family report. Although relied upon by the Independent Children’s Lawyer in this case, Mr L was not required for cross-examination. I would be reluctant to adopt the opinions of Mr L without testing (in circumstances where the Court has an updated family report and that family report writer has been cross-examined).
However, I put to Mr Galloway for the mother, and he accepted, the Court could consider the comments made by the children recorded by Mr L in his report (X at paragraphs 88 to 97 and Y at paragraph 98 to 104), particularly as they related to their degree of discomfort and dislike of their relationship with Mr E at the time. A reading of those comments at the time made it clear that the children expressed a preference to live with the father. It was also clear that Mr L was not in the position to make a recommendation because of the need to assess various risks in the household of both the mother and father.
That Y has some significant difficult behaviour management issues would be to state the obvious. His diagnosis and treatment is fully set out within the annexures to the mother’s trial affidavit, including the NDIS approval for a care plan dated early 2022. I accept the submission of Mr Galloway on behalf of the mother that the mother has been committed to supporting Y’s behaviour management strategies and therapy, which have included animal therapy, speech therapy and other forms of therapy.
There is a dispute between the mother and father as to the extent in which the father was aware of the therapy. On balance, I accept the father’s version of the history that he knew little of the actual therapist and the like, which I accept caused a degree of scepticism in him accepting the diagnosis of autism and/or ADHD ultimately revealed in the material.
The matter was listed to be heard by Judge Cassidy (a former member of Division 2) at a trial to commence on 18 May 2022, however, sadly, X was admitted to hospital the day before the trial was due to commence and there is some suggestion in the material that the parties had filed affidavits late as well. The trial did not proceed. On 14 July 2022, the matter was transferred to Division 1.
In late 2022, the mother says that her relationship with Mr E broke down. The flavour of her evidence at that stage is that it had broken down completely and finally. As I will identify, that is not the case. The Court also identified that, in mid-2022, the mother arranged for the children, Mr E and herself to have a four-night and day holiday at the N Hotel. The mother gave evidence that she thought this was important for the children to develop their relationship with Mr E – the same Mr E who was the subject of the Order made on 28 October 2021.
With all that was going on, in or about October 2022, X, in my assessment, sought sanctuary from the conflict between her parents by seeking out and finding support at that stage in living primarily with the maternal grandmother, Ms O. Her decision to live with Ms O (effectively voting with her feet) became immediately problematic because of the difficult and estranged relationship that exists between the mother and her extended family (save for her grandmother), that extended family being her mother, Ms O, and her sister, Ms P. The mother saw the actions by X as somewhat provocative.
In November 2022, a Senior Judicial Registrar removed Ms P from the proceedings and joined the maternal grandmother, Ms O. When in February 2023, as I will soon mention, X decided to then live with her father, the maternal grandmother was removed from the proceedings and has not played an active role in the proceedings. She was, however, interviewed by Ms D on 1 February 2023 for the purpose of the family report. The tensions in the relationship between the mother and the maternal grandmother were apparent from the statements made to Ms D during those interviews.
When I first saw this matter on 14 December 2022, it appeared clear that it needed a trial as quickly as possible. It was listed for hearing for three days commencing 3 May 2023. I would have liked to have listed it earlier, however it was necessary to await the production of a family report that had been ordered, which was released on 13 March 2023 with its author being Ms D. Ms D was the subject of cross-examination.
On or about early 2023 (shortly after the family report interviews), X again had a need to be admitted to hospital because of her mental health condition and threats she was making of self‑harm. Perhaps for the first time in the life of these children, this very serious event had caused the parents to revisit their contribution, if you like, to the conflict that had engulfed their family for years. Mr Galloway described it on behalf of the mother as a “watershed moment”. More than that, Mr Galloway in submissions indicated that an informal agreement between the parents, which both parents confirmed had been discussed on or about 3 February, that X would live with the father and that Y would live with the mother, had been reached. Mr Galloway asked in final submissions that I give significant weight to that agreement reached at that time.
Whilst I take the behaviour of the parties in reaching that agreement into account, I do not accept the submissions of Mr Galloway that the agreement is a “determinative” factor. That is because at the very least, at the time of the agreement, there was great uncertainty at least about whether Mr E was in fact a member of the mother’s household or not.
The evidence given now to the Court by Mr E conflicts in some ways with the evidence of the mother as to when their relationship ceased. The mother is saying in September 2022. Mr E is saying sometime before New Year 2022. Even though the family report writer notified the parties in December 2022 of scheduled interviews to take place on 1 February 2023, the mother identified that Mr E was not a member of her household. As a result, he was not the subject of interview by the report writer; was not assessed in relation to his relationship with the mother; and was not observed with the children and the children were not asked by the Court expert about Mr E.
No criticism of the report writer, based on what she had been told by or on behalf of the mother, lies against her. However, as I indicated to Mr Galloway on behalf of the mother – and a subject I will return to shortly – the lack of that evidence is disappointing for the Court.
As the transcript will reveal, the only reason that I have any evidence from Mr E is that on the first day of trial Counsel for the mother, Mr Galloway, indicated that he was seeking leave to adduce an affidavit (not at that stage prepared or filed) from Mr E who he acknowledged was the partner of the mother. That affidavit was prepared and filed and Mr E was the subject of cross-examination.
At least two other significant events have occurred since the so-called “informal agreement” was reached. On or about early 2023, the mother and Mr E say that he returned to the mother’s home as a permanent member of her home. Furthermore, within a week thereafter, Y was suspended from school for five school days. This is referred to in the school records tendered as Exhibit 13. Y took a knife to school and it appears it is alleged he threatened teachers and/or other students. The further evidence is that he may have used the knife to attack playground equipment.
Y’s behaviour should also, in my view, be seen in the context of his decision to telephone police on or about early 2023 when he came into conflict with Mr E at his home again over the use of his mobile phone. He personally rang the police. Exhibit 6 sets out the details of the conflict, the police seemingly taking the view that it was disciplinary action undertaken by Mr E who saw himself as the “step father” of the child. The mother was not home initially at the time as she was having her own medical consultation relating to a workplace injury.
With all this going on, Exhibit 7 are notes of one of the regular attendances by Y at his therapist, Dr Q, tendered to the Court. Although other tendered consultations have been read and considered, the Court particularly refers to this document as it identifies recorded statements by Y on 25 March 2023. Context for those statements at that time include at least a possible understanding that the parents, through the informal agreement, had decided that X would live with the father and he with the mother; and perhaps, also, the fact that, within days of that appointment, Y had received information that his mother had been diagnosed with a serious medical condition.
It is not possible to know whether the comments and recommendation in the family report that issued on 13 March 2023 were also known to him, namely, that he live with his father. All these factors are possible factors, in my view, when one considers what the child is recorded (by the therapist) as saying on 25 March 2023 as follows:
•[Y] acknowledged that all the above events occurred but generally would initiate conversation about them as a point of interest (e.g. Guess what happened? My phone broke!) rather than taking ownership/responsibility for his significant part in the events.
•[Y] acknowledged that he was nervous about outcome of court
•[Y] stated he wants to live with mother, citing, “It’s nice at Mum’s.”
•[Y] reported he would like sister to live with father, “so they get a kid each and it’s fair.” [Y] was unwilling/unable to discuss the incident involving taking a knife to school; [Y] denied wanting to hurt himself or others; [Y] endorsed [Dr Q’s] suggestion that it made him feel safe but [Dr Q] is unclear if this was the motivation.
•[Y] made little comment about the recent mother’s […] diagnosis.
(Exhibit 7).
The matter proceeded to trial before me commencing on Wednesday 3 May 2023 and concluded the following day. Relying on the statements and findings of fact previously set out, and to show a pathway to the ultimate decision of the Court, the Court will set out some findings in relation to the evidence within the matrix of the relevant primary and additional considerations.
PRIMARY CONSIDERATIONS
I am satisfied and both parties acknowledge that it is in the best interests of Y and to his benefit that he have a meaningful relationship with both of his parents. Much of the history of this matter can be found to have been shaped by uncertainties and allegations about risk; physical and psychological. The issue of family violence certainly in the relationship earlier is also a significant issue.
Noting that neither party sought orders that any time spent by the child Y with the other parent ought be supervised and building on the final submissions made by Mr Casey for the father and Mr Galloway for the mother, the Court is not invited to make a finding that Y will be exposed to physical or psychological harm or subjected to abuse, neglect or family violence in either household.
Whilst Mr Ashcroft for the Independent Children’s Lawyer did not seek a finding contrary to the positions of the parents, he raised in submissions some reservations about some of the history of this matter and the uncertainty about, for example, parental drug use that may still exist. There is no doubt that both parents have engaged historically in the use of illicit drugs. I am satisfied that the mother’s use of methamphetamines and other substances in the earlier part of the relationship and post-separation was significant. I am satisfied that her partner, Mr E, was also a user of drugs. I am not satisfied that the evidence permits a finding that they were dealing or selling drugs. The oldest son, Mr B, who is now 19 years of age and lives in a separate accommodation on the property occupied by the mother with his girlfriend – the children say has used drugs, as well. So far as the mother is concerned, she points to the Relapse Program (although there is limited reliable evidence about the results of that program) and says that the Court should accept she is no longer using drugs.
Her explanation for not complying with a request by the Independent Children’s Lawyer as set out in Exhibit 9 and not completing a urine analysis is simply she could not afford to do so.
The father admits to more recent recreational use of an illicit substance. He also failed to respond as requested by the Independent Children’s Lawyer (under the Orders) to produce a urine analysis (see Exhibit 12). His explanation is the same – that he could not afford to do so.
I cannot be satisfied that these parties are either continuing to use drugs or have, as they both claim under oath, to have ceased generally the use of drugs.
There are other allegations that arise from the evidence that might be seen as a risk of psychological harm around Y’s use of gaming devices to access online video games. But I choose to deal with this issue more in terms of the parent’s attitude and capacity to parent, rather than as a risk factor that, notwithstanding that the family report writer identified the child’s self-proclaimed use of devices to access games such as Fortnite (which I would agree with the family report writer) was excessive use within the parenting style. Certainly, it is somewhat speculative and the evidence is not sufficient to satisfy a link between the use of a game which Mr E has seen and gave evidence has elements of killing and violence and whether it could amount to a trigger to Y who has a propensity for violence, aggression and misbehaviour.
ADDITIONAL CONSIDERATIONS
I deal with the additional considerations set out in s 60CC(3) of the Act in a narrative way. X’s expression of where she prefers to live is demonstrated by her recent actions. The fact that, with the support of both her parents, she is now comfortable at this stage to transition between her father’s home and her mother’s home (they live approximately 30 to 40 minutes apart by car) is acknowledged by the Court. In a practical sense, living with the father helps her to maintain her schooling at the J School where, I accept, she has developed a cohort of friends and also has a connection with the community around where the father lives.
For Y, his wishes have been a moving feast. I take on board the comments made by Mr L as earlier referred to. The strongest expression of views by Y to Ms D was that he wished to live with his sister. At 1 February 2023, when he expressed those wishes, it seems that X was living with the maternal grandmother. He would not have been aware in February that the parents would reach an agreement that X live with the father, as that was determined some days after the family report interviews. Therefore, when he expresses a preference to live with his father at that time, I give such an expression some weight. I accept that the mother says the child’s wishes have changed. I have already referred to comments made by the child to his therapist on 25 March. However, in my view, the more recent statements should be given less weight because of the context in which those statements were likely made.
As to the nature of Y’s relationship with each of the parents and others, I am satisfied that both parents deeply love this child (as they do X) and that Y knows that to be the case. He has an intact relationship with both. However, his innate personality challenges, diagnosis and behaviour issues would be a test to any relationship between a child and a parent. This could mean, as the evidence demonstrates, that Y – if he does not get what he wants, could be seen to be quite negative about and/or aggressive towards the parent trying to control his behaviour. This should not overstate what his deep desire is – namely for a relationship with each parent.
I am satisfied that the consistent view that Y had expressed both to Mr L and, again, to Ms D about living with or being closely connected with his sister is an expression which I should give some weight to. The mother acknowledged that was the child’s views in her affidavit filed 12 April 2023. I regard, despite their different developmental stages, that X and Y have had a similar journey through life and have become close and bonded as a result of that journey.
It is difficult to assess the quality of the relationship between Y and Mr E, the mother’s partner. That is not only because the report writer had no opportunity to try and assess it through interview, but that, because the report writer was told that the relationship between Mr E and the mother had ended – she did not explore that with the children and, in particular, Y. I had the benefit of seeing Mr E in the witness box. He presented as a person highly supportive of his partner. I think, however, the relationship can be assessed (since it began some seven years ago) between the mother and Mr E, as having been “on and off”. Mr E certainly is empathetic to the mother’s challenges arising from her recent diagnosis. The events where he has been in conflict with Y, of which I have independent evidence, could be described as nothing more than a person in an adult role seeking to manage the child’s behaviour without particularly being very successful. Because of Y’s behaviour, that should not be a matter for which Mr E bears criticism. However, I cannot be satisfied that the relationship is as close and as mutually beneficial as Mr E asserts in his affidavit. In particular, I am not satisfied that Mr E’s relationship with Y is such that Y will listen to him in the same way as he would, on my assessment, listen to his father as a strong male role model.
The history of the proceeding shows that there have been a number of decisions made as to where the children live and spend time. Both parents could be criticised with, at times, not doing more in terms of promoting time; and ensuring they are both at significant events relating to the child’s medical treatment and diagnosis. But that must all be seen within the context of the relationship as revealed in the history above.
In my final analysis, I deal with s 60CC(3)(d), namely, the likely effect of any changes to the child’s circumstances which is, of course, a significant factor in this matter considering that the father’s proposition, supported by the Independent Children’s Lawyer, is that the child Y live with him.
There are no significant practical difficulties and expenses of the child spending time with and communicating with either parent. As indicated, they live approximately 30 to 40 minutes apart and they have managed recently to communicate better so that any practical difficulties can be worked through. Perhaps the best demonstration of the improved communication is the invitation by the father, accepted by the mother and both children, to join him to celebrate X’s birthday in 2023 with a family barbecue. Seeking to extend an olive branch to Mr B (with whom he is currently somewhat estranged) and his girlfriend, they were invited to attend but did not do so. Importantly, the father also invited Mr E to attend but he was unable to attend. The father initiated this endeavour.
In relation to the capacity of each of the parents and other persons to provide for the needs of the child, in my view, although there is a difference in age and perhaps life experience in some ways, the evidence would not suggest that there are factors which prevent the parties from using the best of their capacity to meet the needs of the children emotionally and intellectually, as well as physically.
Section 60CC(3)(i) refers to a consideration being:
…the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I regard this as a significant factor. On all the evidence, I have formed the view that the father’s parenting style is more defined, robust and clear than is the mother’s. In making that assessment, this is not to suggest that the mother does not wish to regulate the child’s behaviour any more than the father seeks to do. In my view, however, the mother has demonstrated less ability to do so than the father has demonstrated. In making that assessment, which I have no doubt will disappoint the mother and perhaps offend her, I take into account the difficult commencement of the relationship between the mother and father; the fact that she has recovered from a significant use of drugs; the fact that at the time of trial she is seeking to cope with a very serious health diagnosis, still uncertain as to effect, relating to the medical condition.
To the extent that in her household Mr E would hope to support her behaviour management, in my view, he has not demonstrated that he has the sort of relationship with Y that will mean he can consistently achieve that result, as much as he may wish to do so, both for Y’s benefit and to support his partner.
One of the issues which particularly requires focus in this matter is the use of the devices. In the mother’s home, I am satisfied, on the evidence, Y has used his devices more, and he is allowed to do so. I accept he is a difficult child to manage in this regard and his intelligence and capacity to manipulate technology, is best demonstrated by the ability he was able to exercise in accessing his mother’s bank account so as, electronically, presumably through some internet banking process, to access his mother’s bank account and obtain credit for his gaming activities. When the Bench asked the mother how he was able to do so, in particular, how would he even know the password, the mother said that he was able to identify the password by watching her and watching her, presumably, access her banking records.
The lack of current use and access to online gaming in the mother’s home where he lives, be it Fortnite or other platforms, is best explained by the fact that the child’s devices are generally broken mostly by his own actions, however Mr E gave evidence that recently some form of device was provided by him to the child as a reward for some improved behaviour.
The father gave evidence, which I accept, that he is more assertive and is able to better regulate the use of Y’s interest bordering on, it seems to me, obsession to the types of games that he enjoys playing. I accept the evidence of the father based on his demeanour in the witness box and the fact that I believe he has a likely presentation to the child less accepting of the child’s, at times, unreasonable demands.
Now that the father is fully aware of the medical challenges of the child, as demonstrated, he says, for the first time in the reports attached to the mother’s trial affidavit, I am satisfied that his scepticism about the child’s condition has been reduced significantly. I find he would, if the child lives with him, be as committed, individually and jointly, as the mother to maintaining the level of therapy that the NDIS support plan permits to be obtained at the costs of the public purse.
I take into account there is a family violence order made, which continues to operate and be in effect until mid-2026. I am satisfied that family violence was a feature of the intact relationship between the mother and the father, but they have been separated for many years now, and there is no evidence of any actions taken by police or others in relation to a breach of the family violence order currently made in 2021.
It is clear that this is a case where the orders the Court is asked to make should be least likely to lead to the institution of further proceedings. The lack of precision in the orders in relation to X could lead to an inference that they are not ones capable of being enforced in a way that further proceedings could be necessary. The fluidity of this child’s needs and support are such, in my view, that that is a possibility. In respect of Y, both parties at trial, despite what they have put in their trial affidavits, would ask the Court to accept that the improved relationship they now have means that even if the Court prescribes orders as to time that they would, in the best interests of Y, discuss variations from time to time in his best interests.
I hear what the parties say to the Court. It is difficult without a period of demonstrated better communication (which has not occurred to date other than for a few months) that the Court can share the optimism that that will occur. The fact that the parents both, under oath, say that it is likely is a good start.
PARENTAL RESPONSIBILITY
In my view, the improved communication and the awareness of the significant needs of each child satisfies me that it is in the best interests of both X and Y that the presumption of equal shared parental responsibility apply. I will make an order accordingly.
LIVING ARRANGEMENTS
During the course of final submissions, I indicated to Counsel that this is a finely-balanced decision. Rather than where the child lives, in some ways, his appreciation that his parents are on the same page and are not in conflict, has the potential, in my assessment, of being the major environmental factor that will support his continued striving to improve his behaviour, notwithstanding his treatment and notwithstanding his diagnosis. Children with behavioural difficulties can often easily be isolated from their peers; subject of ridicule and criticism, and begin a journey of isolation which can have significant adverse effects for their life. The school reports have some positives as well as some matters of concern.
As he approaches secondary school, provided the schools are able to provide to him the support he needs supplemented by outside counsellors and therapists, there is, hopefully, every prospect of Y reaching his potential.
I have come to the conclusion that it is in the best interests of Y that he live with his father. He should do so by the end of the current school term, after which he will return to live with the father and from the commencement of the third school term 2023 beginning at H School. I regard a change of schooling at the end of this term as preferable to moving his school during the middle of term. I find attending a primary new school (where he has previously been, but some time ago) for two terms of primary school before moving to secondary school, may assist him in integrating with a new cohort (or renewing friendships with an old cohort) before he moves to J School at the commencement of the 2024 school year.
I take into account that J School is the school currently attended by X. Ms D opined that a change of schooling by Y should be manageable by him.
I regard that this is in the best interests of the child, and in making that assessment I would not want the mother to believe that I regard the hard yards and committed parenting she has provided for this child to date in different ways at different times has been ignored by the Court, for it has not. Rather, I agree with the evidence of Ms D and the submissions of the Independent Children’s Lawyer, adopted by the father (not surprisingly), that there are some uncertainties in the mother’s household which do not exist in the father’s household, and there are some strengths, in my view, in the father’s household which do not currently seem to be demonstrated in the mother’s household.
Some of those uncertainties include:
(a)the nature of, subsistence of and future of the relationship between her and Mr E;
(b)the extent of the relationship between Y and Mr E when things get tough has, in the past, demonstrated an incompatibility of views; and
(c)the mother’s diagnosis should not be a major factor because, as everyone would hope in this case, the surgery will have dealt with the issue, but the Court cannot ignore that, sadly, that may not be the case, and the emotional burden that may create upon the child is just another, although slightly less, significant factor.
Even though the child will maybe not spend as much recreational time with his sister outside of school hours or on weekends as he may have hoped because of her desire to spend time with the mother, at least during a school week when they are both going to local schools, and live in the father’s home they will have an opportunity to continue to develop their supportive relationship before and after school and for some time on weekends and holidays.
X’s experience at J School may assist Y’s integration into that campus from 2024. I have formed the view that the father’s parenting style, particularly in supporting the therapeutic intervention but providing strict boundaries, consequences and outcomes, not only in relation to the possibly destructive use of devices and access to online gaming of a violent or destructive nature, if that is what is occurring, but in respect of his general behaviour, is more likely to support the child now than the mother is able to do either by style of her parenting or because of other factors which puts her under pressure.
For the reasons identified, I regard the orders which appear at the commencement of these Reasons as in the best interests of the children.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 18 May 2023
SUPPLEMENTARY REASONS FOR JUDGMENT
BAUMANN J:
On 18 May 2023, the Court pronounced Orders in this matter in which Order 31 provided for the mother to not bring the children into contact with her partner Mr E.
The inclusion of that Order was an error and does not reflect the intention of the Court (see paragraphs 43, 52 and 73), and I accept by final submissions no party sought such order.
The Orders made 18 May 2023 are therefore amended pursuant rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and are now corrected.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 May 2023
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