Lowry & Keeton
[2023] FedCFamC1F 462
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lowry & Keeton [2023] FedCFamC1F 462
File number(s): PAC 1888 of 2021 Judgment of: BAUMANN J Date of judgment: 2 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –– Application by the father to review a decision of a Senior Judicial Registrar where orders were made which substantially reduced the time the child spends with the father – Where the child who is under 3 years of age was previously in a shared cared arrangement – Where the Application for Review was filed out of time – Hearing de novo Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05(2), 15.06
Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 35 Date of last submissions 31 May 2023 Date of hearing: 31 May 2023 Place: Brisbane Solicitor for the Applicant: AS Family Lawyers Solicitor for the Respondent: Gonzalez & Co Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 1888 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LOWRY
Applicant
AND: MR KEETON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
1.That all previous parenting Orders be discharged.
2.That the child, X born 2020 (“the child”) live with the mother.
3.That the child shall spend time with the father as agreed between the parents in writing, or failing agreement, each alternate week from after daycare or 3.00pm Thursday until before daycare or 9.00am Monday, commencing Thursday, 8 June 2023.
4.That in addition to the time that the child spends with the father pursuant to Order 3 hereof, the child shall spend time with the parents on the following occasions of special significance:
(a)If the child is not otherwise in the father’s care, on the Father’s Day weekend, from 5.00pm the day before until 5.00pm on Father’s Day;
(b)If the child is not otherwise in the mother’s care, on the Mother’s Day weekend with the mother from 5.00pm the day before until 5.00pm on Mother’s Day;
(c)In odd numbered years, with the father from 5.00pm on Good Friday until 3.00pm Easter Sunday, and with the mother from 3.00pm Easter Sunday until 5.00pm Easter Monday;
(d)In even numbered years, the child shall spend time with the mother from 5.00pm on Good Friday until 3.00pm Easter Sunday and with the father from 3.00pm Easter Sunday until 5.00pm Easter Monday;
(e)In odd numbered years, the child shall spend time with the father from 5.00pm Christmas Eve until 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day until 5.00pm Boxing Day; and
(f)In even numbered years, with the mother from 5.00pm Christmas Eve until 3.00pm Christmas Day, and with the father from 3.00pm Christmas Day until 5.00pm Boxing Day.
5.That changeovers shall occur by the father collecting and returning the child to B Daycare, Suburb C, and for changeovers that are not able to occur at the child’s daycare, changeover shall occur at D Contact Centre, with the parents to share in the costs.
6.That in the event the father fails to comply with these interim Orders and fails to return the child to the mother, upon the mother filing an affidavit deposing to the father’s failure to return the child, and within forty eight (48) hours of such affidavit being filed, then:
(a)the child’s unsupervised time with the father pursuant to Orders 3 and 4 hereof shall be suspended;
(b)a Recovery Order issue for the recovery and return of the child;
(c)the child shall spend time with the father supervised at D Contact Centre (“the Contract Centre”) for no more than two (2) hours each fortnight and to facilitate such time each parent must:
(i)contact the Contact Centre within seven (7) days to arrange an appointment for assessment for suitability;
(ii)attend the assessment;
(iii)comply with any appointment made by the Contact Centre;
(iv)comply with all reasonable rules of the Contact Centre; and
(v)comply with all reasonable requests or directions of the staff of the Contact Centre.
(d)the costs of the supervised time shall be borne by the father.
7.That the parents shall keep each other informed of:
(a)any medical problems or illnesses suffered by the child while in their care;
(b)any medication that has been prescribed for the child;
(c)any social, school or religious function which the child is to attend; and
(d)any other matter relevant to the child’s welfare.
8.That without admissions, the mother be restrained from allowing the child to be left alone unsupervised in the care of Mr E born 1977.
9.That the father comply with all recommendations, including but not limited to attending appointments and taking medication as prescribed, given by his mental health care practitioners, including the father’s psychiatrist Dr F and the father’s General Practitioner Dr G.
10.That the parents are restrained from:
(a)discussing these family law proceedings with the child; and
(b)making critical or derogatory remarks in relation to the other party in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
11.That pursuant to s 121 of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer be granted leave to provide a copy of the expert report prepared by Dr H dated 21 February 2023, to the father’s psychiatrist Dr F and to the father’s General Practitioner Dr G.
12.That the parties have liberty to apply on the giving of three (3) days’ notice.
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 Lowry & Keeton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
On 14 March 2023, a Senior Judicial Registrar made orders that the time a young child, X, born 2020, should spend with her father be supervised. Further orders were also made at that time.
The father, who was unrepresented before the Senior Judicial Registrar, filed with legal representation, an Application for Review, which, as I will discuss, sought different orders than those made by the Senior Judicial Registrar; however, it was filed outside the time limits prescribed by rule 14.05(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (namely, within 21 days).
Although the father is now legally represented, his affidavit sworn 30 May 2023 (which I allowed the father to rely upon without objection by the mother or the Independent Children’s Lawyer (“ICL”)) failed to explain the reasons for the delay in filing the review application in time. Mr Gonzales, solicitor for the father says from the bar table the delays are attributable to waiting for a grant of legal aid and to recover a file from earlier legal representatives of the father.
Rule 15.06 permits the Court to extend time for the filing of an Application for Review. The Independent Children’s Lawyer, Ms Khalil, and the solicitor for the mother, Ms Underwood, did not oppose leave to extend. Instead and sensibly they chose to make submissions about the substantive parenting application; relied upon their case outline and submissions made before the Senior Judicial Registrar and supplemented those in oral exchanges with the bench.
In the circumstances, I extend the time for the father to file the application for review.
This is a hearing de novo and not an appeal from the orders of the Senior Judicial Registrar. I have, as a result, not considered or read any reasons that may have been delivered by the Senior Judicial Registrar for the orders made on 14 March 2023 which essentially provided for:
(a)the child, X, to live with the mother and for the mother to have sole parental responsibility;
(b)the child to spend time with the father supervised at D Contact Centre for no more than two hours each fortnight; and
(c)the father to attend upon a psychiatrist, after referral from his general practitioner, “and request a written mental health assessment”. The ICL was also granted leave to provide the family report dated 21 February 2023 to any such psychiatrist and, further, to case workers at J Services and an organisation named K Organisation.
The pathway to be undertaken in determining interim parenting orders is well settled with decisions at least such as Goode & Goode [2006] FamCA 1346 and Banks & Banks [2015] FamCAFC 36 identifying the principles in what is a truncated hearing usually, as in this case, conducted on the papers and where disputed facts are generally unable to be the subject of findings.
Where, as, in this case, risk issues arise, the Court must be cautious in accepting or rejecting allegations made but is not entitled to ignore them. Clearly, a Court is not obliged to accept them. In the end, however, whatever the pathway navigated, the best interest of X remains the paramount consideration.
CONTEXTUAL BACKGROUND
It is apparent these parties had not formed a committed relationship when the child was conceived, having met online it seems. They knew really nothing about the other parent and are still learning things about the other parent as this matter progresses. It is not necessary or even helpful to decide whether the child was conceived as a result of the mother “raping” the father whilst he was unconscious, as the father asserts.
Although the parties’ versions of the extent to which the father participated in antenatal classes or the birth is somewhat disputed, it is not seriously in dispute that some short time after X returned from hospital post her birth the parents co-parented the baby at least for a time under the one roof. The mother says that occurred for about three to four months. The father says six months. Certainly, the father was, I accept, heavily involved with the child in those early months.
The Initiating Proceedings in Division 2 were commenced by the mother on 13 April 2021 seeking a recovery order with her application including orders seeking equal shared parental responsibility; for the child to live with her and for the child to spend time with the father “as agreed”.
When the matter first came before a Judge in Division 2 on 28 April 2021 the father had not yet filed a response or any material in support of his position. It is significant, in my view, that the learned Judge made orders for this very young child that the parents share her care equally overnight and unsupervised in a three plus four plus four plus three-night regime.
I am prepared to infer in the absence of reasons that such an order for such a young child would not have been made in her best interests unless the Court at that time was satisfied the father was able to care for such a young child and had a relationship or significant bonding with that child such that an absence from her birth mother was not likely to cause distress to such a young child.
This history of events reveals that the equal time regime for X (or, at least, the father’s time with her being unsupervised, substantial and significant) continued until the orders of 14 March 2023 (nearly 2 years later), interrupted clearly by at least:
(a)Events in late 2021 where the father then withheld the child causing the mother to file an Application in a Proceeding seeking a recovery order and make-up time. When the matter came before the same Division 2 Judge on 10 February 2022, the child was ordered to spend 14 days of make-up time with the mother, but the earlier equal time order was otherwise maintained.
(b)A further conflict between the mother and father, it appears, relating to the father’s concern about the mother’s care of the child and sharing information about the child’s health challenges resulted again in the father retaining the child and the mother bringing an application for a recovery order that came before the same Judge on 2 March 2022. The orders made by the Judge on that occasion were that earlier shared care orders continue. Obviously alert to the concerns about what might have been, on an interim basis, an argument that the father was unreasonably withholding the child, the orders made by the learned Judge provided that a recovery order was to lie in the registry and to be activated by the mother filing an affidavit. I infer the Judge was aware that an earlier order by her for a family report would hopefully assist these parents and the Court to better understand the dynamics of this relationship.
(c)Relevantly, in my view, although the mother’s application in a proceeding filed 23 February 2022 sought that the father’s time with the child be supervised and limited to two hours a fortnight, no such order was made on 2 March 2022 and, in fact, that order for supervised time was not made until some 12 months later by the Senior Judicial Registrar.
The father and the mother had further conflict in late 2022 which caused the father, on this occasion, to file an Application in a Proceeding on 29 December 2022 seeking a recovery order (allegedly because the mother had retained the child contrary to the interim orders still in place) and further sought that the child was to live with him. It is a little unclear to me why, but although the father’s application was given a hearing date of 5 January 2023, it was not heard and in fact on 23 January 2023 a Judicial Registrar adjourned the substantive proceedings to a date to be fixed after a family report was released. Family report interviews conducted by Dr H commenced on 19 January 2023 and were completed on 3 February 2023 with a report being published on 21 February 2023. That report was before me and has been subject of submissions relied upon by the mother and the Independent Children’s Lawyer as their case outlines reflect, those case outlines also identifying the material they relied upon, which I have considered.
Before the release of the family report the father again withheld the child. On this occasion this was said to arise from a disclosure the father says was made to him by X about her being sexually abused by the mother’s partner Mr E. The father’s self-prepared handwritten affidavit filed 9 March 2023 (which was before the Senior Judicial Registrar) was very difficult to read; highly emotional and lacked coherency. The fact that it did not have paragraphs did not help. It seemed from reading it that it started to be a complaint about a “constant breach of civil rights” and how X’s “safety, welfare and developmental issues” were being abused by the mother who was constantly harassing and intimidating the father and that the mother was, breaching the court order. So far as the allegation of alleged sexual abuse is concerned, with the assistance of his recently retained lawyer the father says at paragraph 57 of his affidavit as follows:
After we arrived home [sometime in February 2023]. I was changing [X’s] nappy and she started touching her private parts. I said to her, “baby, don’t do that”, and she continued to. I then questioned her further asking if anyone is hurting her, to which she said “yes, fanny.” I asked her “where?” and she pointed to the bed. I then asked her who was hurting her, I specifically asked if the mother’s boyfriend is hurting her, to which she said yes. I was and continue to be very concerned about what [X] said. I instructed my lawyer at the time and she sent a letter to the mother’s lawyer and cc’d the ICL seeking an explanation as to disclosure. To the best of my knowledge the letter was ignored. I decided to retain [X] in my care as I was concerned for her safety.
As I indicated in exchanges on 31 May 2023 with the legal representatives, the nature of the disclosure that was made as a result of such leading questioning, at least such as is revealed by the father’s affidavit – there could have been more – towards such a young child, makes it is hardly surprising that authorities in a case like this have not taken further investigative actions on this issue. Nonetheless the father does to some degree cling to the belief that further investigation is required and at some level that the child may have been abused.
I note the Senior Judicial Registrar made an order that the mother was restrained from allowing the child to be left alone unsupervised in the care of Mr E. I intend, noting that I have no evidence from Mr E that has been produced to the court at this earlier stage, to maintain that order. The mother did not contend otherwise.
What is extremely relevant with this history in my view is that X’s lived experience is that her father has been a constant and significant part of her life from birth at least until the decision the Senior Judicial Registrar made on 14 March 2023 for supervised time. That Order was made when X was two years of age. The fact that the child had a good relationship with the father was at least exhibited, when the Family Report writer notes her observation between the child and the father in January 2023. It was evident on the reading of paragraph 67, and was not actually challenged by the mother in submissions to me, which records as follows:
[Mr Keeton] clearly loves [X] very much and wants to protect her against any potential harm. He behaved in a very affectionate and child-focused way with her. When I observed them together [Mr Keeton] showed a capacity to have gentle and loving interactions with her. He clearly is extremely proud of her and delights in being with her. His positive love and care of [X] were confirmed by [Ms L].
With this background the court comes to consider what interim orders are in the child’s best interests until final hearing. In this regard although the proceedings have been placed in the trial pool in the registry awaiting allocation to a Division 1 Judge for hearing and has also been expedited by order of a Judicial Registrar, the practitioners who appeared before me, all familiar with progression of matters in the registry, were understandably unable to indicate when a trial is likely to be undertaken. In these circumstances I am entitled to anticipate any interim orders made today could well continue for the rest of 2023 and into 2024 (before a judgment from any trial might be delivered).
COMPETING PROPOSALS
The father’s Application for Review filed 5 May 2023 sought essentially orders for week-about time. However, this position seemed to have changed by the time he filed his recent affidavit where at paragraph 69 he says that:
The Orders I seek are for [X] to return to my full time care and that any time between her and her mother be supervised until there is a proper investigation about the disclosures [X] made to me.
I asked the father’s solicitor during exchanges at the hearing on 31 May 2023, where I identified the stark difference in his client’s proposal in his affidavit compared to the application for review which it seems the same solicitor had prepared, whether the father’s current position remained as stated in his affidavit. I was told by Mr Gonzalez on behalf of the father who was with him at the time, that that was his instructions.
The Independent Children’s Lawyer and mother contend that the orders that I should make on this de novo hearing for time between the child and the father should be as ordered by the Senior Judicial Registrar, and as a result the father’s Application for Review should be dismissed.
DISCUSSION
This case squarely focused on a consideration of the two primary considerations under section 60CC(2) with the need to protect the child to be given greater weight than the benefit to the child of having a meaningful relationship with the parent. Those sections should not be read, of course, to assume that every potential risk outweighs every potential benefit to the child on proper consideration of the evidence even on interim basis. I am not persuaded at this stage that the vague and uncertain allegations of sexual abuse asserted by the father requires the mother’s time to be supervised at all. The order for the child not to be in the care of Mr E, as I say, unsupervised, should continue, and the mother did not contend otherwise.
The father makes further unclear and at times vague allegations about other risks in the mother’s home, including association with friends and her family said to be drug users or otherwise inappropriate; the mother’s alleged diagnosis for a condition and a number of her parenting decisions in observance of medical treatment (bordering, in his view, on neglect by the mother). On an interim basis I do not accept the father’s contentions are supported by the current evidence.
It is clear that these parents are unable now to communicate at any effective level and that the father believes strongly that his role as a loving parent is being diminished by the mother’s actions and the orders of the court currently in existence for supervised time. It is clear to me that this has caused him to exhibit, at least even during the family report interviews (where a person generally seeks to demonstrate and portray themselves in the most favourable way), emotional deregulation and dysfunction. The risks that the ICL and mother conjointly rely upon to support a cautious and protective approach being taken until a trial takes place when all available evidence can be tested includes:
(a)Reliance on various paragraphs in the untested evidence of the court child expert Dr H as set out in the case outlines. I have considered those paragraphs numbering 12, 23, 33, 34, 36, 64, 70, 75, 76, 112, 114, 115, 120, 122, 123, 124, 128, 127, 132, 136 and also considered the whole of the report and in these ex tempore reasons there is no need to record them in these reasons for judgment.
(b)The belief that the mother holds, bordering on fear, that the father is likely to further interrupt the arrangements and relationships of the child by withholding the child if time is unsupervised and he is unrestrained from doing so are based primarily on the history above but also on the proposals of the father and the way he presented to the child court expert.
(c)The father’s difficulty to control his emotions presents as a real risk to the emotional wellbeing of the child
(d)The father is so invested in his beliefs and criticisms of the mother (which may be entrenched; it is difficult to say) that any unsupervised time will expose this young child, a child all parties assess has experienced global development delays since birth and needs careful and constant management, to a further risk of emotional harm in unsupervised care of the father.
(e)The father’s mental health challenges have not been thoroughly and independently assessed. In this respect the father in my view cannot be fairly criticised for the attempts to comply with the order of obtaining a mental health assessment made by the Senior Judicial Registrar, other than not provide details of the name of the psychiatrist he was referred to by his general practitioner. A form of assessment is provided by psychiatrist Dr F dated 7 April 2023. This assessment was not available to the Senior Judicial Registrar. I agree with the submissions of the Independent Children’s Lawyer that the weight to be applied to this limited report must be carefully considered in terms of the way it has been produced, but in my view it is not appropriate for it to be ignored. Like all such cross-sectional assessments, the psychiatrist relied entirely on what the father told him of his history, current presentation, and without any collateral information such as a family report. However I do not ignore his expressed professional opinion that:
There is no evidence of any current major depressive symptoms, mania, psychosis, immediate risk to self or risk to others. His trauma symptoms although chronic and intrusive cause him minimal distress and impairment at present. His main difficulty currently seems to be situational stress and anxiety relating to his family court matter.
(f)In respect of this last comment, it is contextual that the father’s family law situation at 7 April 2023 involved cessation of time since at least 14 March 2023 and on the orders the father was confronted with a situation, that those orders were going to significantly reduce the time he was spending with his daughter from an equal time regime that had been in existence for most of her life to two hours a fortnight. Although the psychiatrist recommended ongoing support of a psychologist, counsellor or psychotherapist to assist the father with current stressors and other issues, he opined that further psychiatric intervention at this time was not required. I note the report was addressed to the father’s general practitioner and I believe it is likely and he should be required, in my view, to discuss the report from the psychiatrist with his general practitioner, including a suggestion that the father consider resuming stimulant medication for his ADHD.
(g)I take into account that there is a current apprehended violence order in the mother’s favour to, as her lawyer says, “protect her”.
CONCLUSION
Although Dr H did not recommend the child’s time with the father be supervised, she did raise, as the report makes clear, a number of concerns about the father’s behaviour as she observed it. She did clearly recommend that the child’s time with the father be reduced (see paragraph 132) and that handovers should take place at a supervised contact centre or a publicly neutral venue such as day care. I accept the father’s behaviour is of concern. Whether it is totally shaped by the events of recent times in the litigation is difficult to be absolutely certain about at this stage. Whether returning to his previous medication for ADHD will assist is uncertain. There is little evidence to support a submissions that the equal time arrangement for over two years has caused the child any harm at all.
I accept there is a potential that with his seemingly fixed beliefs having unsupervised time could provide the father with an opportunity, if he believes the child is still at risk in the mother’s care notwithstanding the Court’s comments today, to protect the child X by retaining her. The mother says that his past behaviour is a predicter of future behaviour. Whilst that is a matter I take into consideration, I am not satisfied to the same extent that the mother and the ICL appear to be, that the father will put at risk his long-term relationship with the child by acting inappropriately in such a manner again. Even if I give these risks identified by the mother and the independent children’s lawyer greater weight as the law requires, it does not in my view necessitate the child having her lifelong developed relationship at this stage reduced to such a critical level for what would end up being a quarter of her life by ordering supervised time.
For the reasons which I have now given, and conscious certainly of the additional consideration of section 60CC(3) that requires me to give consideration to the effect of change of any circumstances that arise from the orders I make, I have reached the conclusion that X’s time with the father should be reduced from an equal time regime but not supervised at this stage.
I am conscious that the proposal I have was not considered by the parties and as a matter of procedural fairness they should be given an opportunity to discuss arrangements in the interim and any conditions that need to be included in orders finally pronounced. I have already indicated that a continuing condition in relation to unsupervised time to Mr E should be included.
I also would have no difficulty in an order similar to that made by the Division 2 Judge about a Recovery order being able to be activated in the way that was suggested in that order.
I am not satisfied that it is in the child’s best interests for the mother to have an order on an interim basis for sole parental responsibility at this early stage. The Family Law Act 1975 (Cth) (“the Act”) identifies and gives caution to making orders departing from the presumption of equal shared parental responsibility on an interim basis. I note until the orders were made by the Senior Judicial Registrar the presumption of equal shared parental responsibility has not been disturbed by court order. The evident communication issues and disputes about sharing medical information does not at this stage persuade me at this time, that there is a principled reason to depart from the presumption (see Kent J in Vallans & Vallans (2019) 60 Fam LR 193).
Subject to how changeovers can be arranged, and in that regard it is a little unclear to me what are the current day care arrangements for X such as to contemplate changeovers at day care, which would be my preference, I propose that the child spend time with the father each alternate weekend and a night including the following day with the father in the off week.
Lest it be thought I have not considered it, clearly with the presumption of equal shared parental responsibility applying, the Act requires me to consider whether it is in the best interests of the child or reasonably practicable for an equal time regime to occur (s 65DAA). In my view it is not in the best interests of the child for an equal time regime to resume, nor is it reasonably practicable, communication between the parties being so poor. However I am satisfied that it is in the best interests of the child and reasonably practicable with appropriate conditions for what will amount effectively to a substantial and significant time order to be made.
The orders which appear at the commencement of these reasons reflect the additional submissions received on 6 June 2023 and the production by the ICL, of a form of minute. The parties jointly submitted that rather than two separate periods of time, the “block” time the child spends with the father over an alternate weekend should commence on Thursday and continue to Monday. I will so order.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 7 June 2023
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