Lewerenz & Dwight

Case [2024] FedCFamC1F 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lewerenz & Dwight [2024] FedCFamC1F 111

File number(s): BRC 13681 of 2020
Judgment of: BAUMANN J
Date of judgment: 4 March 2024
Catchwords: FAMILY LAW – PARENTING – Competing applications for residence – Where the child has been spending supervised time with the father since 2020 – Where the Court does not find the child is at unacceptable risk of harm in either parent’s care – Final orders made in the best interests of the child for the child to spend unsupervised time with the father  
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA
Cases cited:

Goode & Goode (2006) FLC 93-286

Jones & Dunkel (1959) 101 CLR 298

Keane & Keane (2021) 62 Fam LR 190

Russell & Close [1993] FamCA 62

Division: Division 1 First Instance
Number of paragraphs: 112
Date of last submission/s: 28 September 2022
Date of hearing: 18 – 20 July, 1, 8 and 28 September 2022
Place: Brisbane
Counsel for the Applicant: Ms S Downes
Solicitor for the Applicant: BGM Family Lawyers
Counsel for the Respondent: Mr J Todman
Solicitor for the Respondent: Clarity Legal Group
Counsel for the Independent Children’s Lawyer: Mr W Hodges
Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor

ORDERS

BRC 13681 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LEWERENZ

Applicant
AND:

MR DWIGHT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 MARCH 2024 

THE COURT ORDERS ON A FINAL BASIS:

1.That all previous parenting Orders be discharged.

Parental responsibility

2.That the child, X born 2014 (“the child”) live with the mother.

3.That save for any change to the child’s surname, and relocating the child’s residence outside the Region B local government area, the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child, subject to consulting with the father as follows:

(a)Save in the case of an emergency, the mother shall give the father written notice of her intention to make a major long term decision before that decision is made, with details of the intended decision

(b)The father shall respond in writing to the mother as to his views about the intended decision within fourteen (14) days of receiving the mother’s notice; and

(c)The mother shall advise the father in writing of the decision she has made within seven (7) days of receiving the written response from the father.

4.That each parent be responsible for the child’s day-to-day care while in their respective care.

Child’s time with the father

5.That the child spend time with and communicate with the father at all times as agreed, but failing agreement in writing as follows:

(a)Commencing on Saturday, 16 March 2024, and each Saturday from 9.00am to 12.00pm for two (2) visits; thereafter

(b)Each Saturday from 9.00am to 4.00pm for four (4) visits; thereafter

(c)Subject only to…

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Lewerenz & Dwight [2024] FedCFamC1F 111
Case
[2024] FedCFamC1F 111
Decision Date

CaseChat Overview and Summary

In the matter of Lewerenz & Dwight, the Federal Circuit and Family Court of Australia (Division 1) was tasked with making final parenting orders concerning the child X, born in 2014. The dispute involved competing applications from the parents, Ms Lewerenz and Mr Dwight, regarding the child's residence and the nature of her time spent with each parent. The central legal issues revolved around determining whether the child was at an unacceptable risk of harm in either parent’s care and what orders would be in the child's best interests.

The court meticulously reviewed various pieces of evidence, including reports from a psychologist, observations from supervised visits, and expert opinions from a family consultant. It was noted that while the child had been spending supervised time with the father since 2020, there was no evidence to support the claim that the child was at risk of sexual abuse by the father. The court found that the mother’s concerns seemed to stem more from her negative view of the father rather than any substantiated risk. Additionally, the court acknowledged the child's therapist's observations, which highlighted the child's anxiety and confusion due to conflicting messages from both parents.

The court concluded that while both parents exhibited behaviours that posed some risks, these risks were not so severe as to prevent the child from having a meaningful relationship with both parents. The court found that the father had quirky and sometimes inappropriate behaviours, including anger issues and a heightened alertness to germs, while the mother allowed the father's parenting style to influence her household to some extent. Despite these findings, the court determined that the benefits of maintaining a relationship with both parents outweighed the risks presented by each parent’s conduct.

The court made final orders that the child would primarily live with the mother but spend significant unsupervised time with the father, gradually increasing from supervised visits to overnight stays. The orders also included detailed provisions for communication, exchange of information, and restraints to ensure the child's safety and well-being. Both parents were mandated to consult each other on major long-term decisions concerning the child and to use a specified parenting app for all communication related to the child. The court emphasized the importance of the child's ongoing psychological support and directed the parents to facilitate this by sharing relevant information with the child's therapist.

Orders

Orders of the court

BRC 13681 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LEWERENZ

Applicant

AND:

MR DWIGHT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 MARCH 2024

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous parenting Orders be discharged.

Parental responsibility

2. That the child, X born 2014 (“the child”) live with the mother.

3. That save for any change to the child’s surname, and relocating the child’s residence outside the Region B local government area, the mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child, subject to consulting with the father as follows:

(a) Save in the case of an emergency, the mother shall give the father written notice of her intention to make a major long term decision before that decision is made, with details of the intended decision

(b) The father shall respond in writing to the mother as to his views about the intended decision within fourteen (14) days of receiving the mother’s notice; and

(c) The mother shall advise the father in writing of the decision she has made within seven (7) days of receiving the written response from the father.

4. That each parent be responsible for the child’s day-to-day care while in their respective care.

Child’s time with the father

5. That the child spend time with and communicate with the father at all times as agreed, but failing agreement in writing as follows:

(a) Commencing on Saturday, 16 March 2024, and each Saturday from 9.00am to 12.00pm for two (2) visits; thereafter

(b) Each Saturday from 9.00am to 4.00pm for four (4) visits; thereafter

(c) Subject only to the father’s compliance with Order 9 hereof, and after a weekend when the child remains in the mother’s care, each alternate weekend from 9.00am Saturday to 4.00pm Sunday for six (6) visits; thereafter

(d) Each alternate weekend from after school Friday to 4.00pm Sunday for six (6) visits; thereafter

(e) Each alternate weekend from after school Friday to before school Tuesday; and

(f) For Christmas 2024 from 2.00pm Christmas Eve to 12 noon Christmas Day and from 2.00pm Christmas Day to 2.00pm Boxing Day in 2025, and alternating thereafter.

6. That the child shall communicate with the father by telephone and electronic communication each Tuesday and Thursday between 4.00pm and 4.30pm.

7. That commencing from the end of term three (3) 2024 being the September school holidays, the child shall spend time with the father for one (1) half of the Easter, June/July and September/October school holidays as follows:

(a) For the first half in even numbered years; and

(b) For the second half in odd numbered years;

8. That the child shall spend special occasions with the parents as follows:

(a) On a week on/week off basis during the Christmas school holidays commencing December 2024;

(b) With the father on Father’s Day from 9.00am to 5.00pm if the child is not already in the father’s care;

(c) With the mother on Mother’s Day from 9.00am to 5.00pm if the child is not already in the mother’s care;

(d) On her birthday with the father:

(i) if a school day, from after school to 7.00pm; and

(ii) if not a school day, from 9.00am to 11.00am

9. That before the child commences spending overnight time with the father under these Orders, the father shall (at least seven (7) days prior to the scheduled first overnight visit) provide to the mother by notice in writing:

(a) the address where the father will be spending time with the child overnight;

(b) details of the nature and length of tenancy/right of occupation the father has secured for that address; and

(c) confirmation that no non-family member shall be living at that address whilst the child is spending time overnight with the father.

10. That all changeovers that do not occur at school shall occur at C Contact Centre unless as otherwise agreed between the parents in writing, with the cost of changeovers to be shared by the parents equally.

11. That the parents ensure the child continues to engage with her Psychologist Mr D.

12. That both parents have leave to provide the child’s counsellor with a copy of the family reports prepared by Ms E and the Reasons for Judgment delivered 4 March 2024.

Exchange of information and parental communication

13. That the parents use the parenting App Our Family Wizard (ourfamilywizard.com.au) for all communication in relation to all parenting issues for the child.

14. That each parent pay one (1) half of the fees associated with the use of the parenting app as provided for in Order 13 hereof.

15. That within seven (7) days of this Order and in writing:

(a) the mother shall inform the father of the current residential address of the child;

(b) the mother shall inform the father of the school the child is attending;

(c) the parents shall provide to each other details of an emergency telephone number that can be a point of contact; and

(d) each parent shall keep each other advised of any changes to these particulars, including the father keeping the mother informed of any changes to his place of residence, within seven (7) days of such change.

16. That the mother shall advise the father in writing of the child’s treating general medical practitioner and save for an emergency, both parents shall utilise that practitioner for the child’s medical consultations.

17. That each parent immediately advise the other via text message in the event the child requires emergency medical treatment whilst in their care.

18. That these Orders be sufficient authority for each parent, subject always to any directions from the school authority, to:

(a) attend the child’s school for extra-curricular activities and meetings, including parent teacher meetings that parents would normally attend; and

(b) obtain copies of the child school progress reports and school photographs at their own expense.

19. That these Orders be sufficient authority for each parent to attend the child’s treating and allied health professionals, including Mr D, and obtain information regarding the child’s health and wellbeing and obtain copies of any reports or assessments at their own expense.

20. That the mother and the father have leave to provide a copy of Orders made to the school at which the child attends.

21. That the mother and the father have leave to provide the Reasons for Judgment and Order dated 4 March 2024 to any therapist upon whom the mother and the father attend for the purpose of therapy.

Restraints

22. That neither parent be affected by alcohol greater than the legal driving limit while the child is in their care, unless the child is adequately supervised by a third person who is not under the influence of alcohol.

23. That neither parent consume illicit substances or be affected by illicit substances while the child is in their care or expose the child to any third person using or affected by illicit substances.

24. That neither parent shall physically discipline on the child.

25. That neither parent denigrate the other parent or their extended family and relatives to or in the presence or hearing of the child and shall use their best endeavour to ensure that no third person denigrates the other parent or their extended family and relatives to or in the presence or hearing of the child.

26. That neither parent discuss these proceedings with or in the presence or hearing of the child and shall use their best endeavours to ensure no third person discusses these proceedings with or in the presence or hearing of the child.

Overseas travel

27. That the mother be permitted to apply for and obtain an Australian passport to enable the child to travel to and from the Commonwealth of Australia.

28. That the requirement for the consent of the father for the issuing of such passport for the child be dispensed with and, if necessary, this Order constitutes sufficient special circumstances for the mother to seek, if deemed necessary, that the Minister administering the Australian Passports Act 2005 (Cth), give consideration to issuing an Australian passport pursuant to Section 11(2)(1) of the Australian Passports Act 2005 (Cth).

29. That the Independent Children’s Lawyer be discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Before leaving this topic, and for clarity, I do not find that the child is at risk of sexual abuse by the father. The mother sought no such finding, but that inference was at least raised through the mother’s concerns about the manner and times the father gave the children a “foot massage” and some of his, he would say, playful and childish comments around the child’s undies and colours etc. Again, I find that the mother’s attempt to give these issues a sinister quality, is more reflective of her negative view of the father, than the father being a risk.EVIDENCE OF EFFECTS ON X Although I do not ignore the concerns the mother raises throughout her affidavit, where I am satisfied the child X is well aware that the mother (her primary carer) and also Ms F think she should spend no time (or limited time) with her father, the Court would be cautious with accepting all the statements made by X to her mother about the father, particularly post separation. To try and better understand how X feels I will now refer to two sources of independent observation and assessment – the counselling by Mr D and the visits supervised by Ms L. After doing so, I will discuss the family report and opinions of Ms E. The Independent Children’s Lawyer filed an affidavit by psychologist Mr D on 16 June 2022, attaching an updated report dated 14 June 2022. In that report Mr D referred to an earlier report dated 3 December 2020, which I infer was considered by Judge Cassidy before she made Orders on 16 December 2020 for X to spend supervised time with the father. Mr D began sessions with X on 21September 2020, and was the subject of cross-examination. His notes were tendered as Exhibit 5 and, relevantly, his notes for communications on 26 July 2022 and 8 August 2022 were also tendered (Exhibit 7). I clearly got the impression from Mr D that:(a)he did not agree with the Court ordering and maintaining supervised time for X. His comment that the Court made orders after his initial report and “despite my recommendations and concerns” suggests he thought the Court was, and is, bound to follow his recommendations. The Court is not; and(b)as he has now seen, for the first time, the supervision notes which he correctly described as “extremely positive”, it caused Mr D to reflect on how X presents to him and the things she says to him, which often are in “completed contrast” to how she is recorded as presenting during supervised visits. The cross-examination of Mr D adduced some further opinions as follows:(a)It is unusual for a child to keep up a façade for two years of enjoying supervised visits;(b)The child loves her father but gets anxious and confused by some of the “mixed messages” she is getting from her father;(c)She also loves her mother and her sister and he agreed that if the child knew that the mother did not want her to see her father – which I find she does – then that could cause anxiety to X;(d)X has presented to him as having a sense of her father’s “anger” and is careful not to “provoke” him; (e)X is likely to be experiencing some anxiety associated with keeping normal information from her father, such as where she lives and where she goes to school; and(f)There have been occasions during therapy, for example on 10 February 2021, where the child felt comfortable in expressing she was enjoying visits with her father, once her mother left the room. On reflection, Mr D indicated sometimes she presents differently when the mother is also present.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I have carefully considered the evidence of Ms E, and although the Court is not bound by such evidence, in this case I do give her opinions some weight. The way in which those opinions shape my assessment of risk is fundamental to the outcome of this strenuously fought litigation and what future orders are in the best interests of X. I now will make some findings on all the evidence, within the matrix of the primary and additional considerations prescribed by the Act. In doing so, in a narrative style, I do not always repeat, but I do rely, on findings already set out in these Reasons.PRIMARY CONSIDERATIONS I am satisfied that X will benefit from having a meaningful relationship with both parents. The fact that Ms L opines she has such a relationship with the father now, which I accept, when his time has been so limited, speaks volumes as to how the child derives a benefit from the father – whilst primarily (almost exclusively) living with the mother. I accept however that s 60CC(2)(a) requires greater weight to be given to s 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – than to the benefit to the child of a meaningful relationship My ultimate conclusion is that X is likely to be exposed to some risks in both the father and the mother’s households arising principally from the parents’ behaviour, but that the risks are not so grave or “unacceptable” so as to outweigh the benefit of the continuing development of a meaningful relationship. In this regard, I find that:Father The father is quirky – odd at times – not explained by his cultural background as he suggests, but more by his personality. He does have a heightened alertness to “germs” or dust; he did in the pursuit of performance use inappropriate strategies upon Ms F and Ms G; he has anger issues at times which I find towards the end of the relationship the mother (by standing up for herself) provoked and recorded for forensic purposes. He was a perpetrator of family violence. His behaviour, which I find in the early parts of the relationship the mother did not oppose, did not sit well particularly with Ms F. Ms F impressed as a now confident and articulate woman, highly supportive of her mother but I felt at times exaggerated some events. Whilst Ms F is a strong and excellent female role model for X, her views of the father (which she is entitled to hold if she wishes to do so) reflect her journey. I am not satisfied that will be the journey for X.Mother My view is that, at times, the mother did allow the father’s parenting style to shape her household. I am satisfied that the father was heavily involved with X’s first six years of her life – although not to the level of primary carer as the father asserts. Certainly however, the mother who, post X’s birth, returned to significant work duties, permitted the father to be significantly involved in the day-to-day care of X. Whilst I accept the father did perpetrate domestic violence on the mother, her failure to call her treating psychologist Mr P (as a tactical decision it seems) but to instead rely on the expert evidence of Dr N, did not in my assessment discharge the evidentiary onus that the mother held, in accordance with the principles enunciated in such cases as Russell & Close [1993] FamCA 62 and Keane & Keane (2021) 62 Fam LR 190.