Luxton & Rodley (No 3)
[2024] FedCFamC1F 452
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Luxton & Rodley (No 3) [2024] FedCFamC1F 452
File number(s): BRC 12331 of 2022 Judgment of: BAUMANN J Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – PARENTING – Where, at a final hearing and before evidence was taken, the parties presented the Court with proposed final consent orders for the children to live in an equal time arrangement – Where the mother originally sought that the children spend no time with the father – Final parenting consent orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Cases cited: Luxton & Rodley (No 2) [2023] FedCFamC1F 1045 Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 13 May 2024 Place: Brisbane Solicitor for the Applicant: Mr D Evans, Evans Brandon Family Lawyers Counsel for the Respondent: Mr C Duplock Solicitor for the Respondent: Paddingtons Lawyers and Attorneys Counsel for the Independent Children’s Lawyer: Mr D Carlton Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 12331 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LUXTON
Applicant
AND: MS RODLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous parenting Orders and notations made in this matter be discharged.
2.That the parents shall jointly exercise responsibility for making long term decisions in relation to the children, Y born 2016 and X born 2016 (collectively “the children”).
3.That the parents shall exercise joint responsibility for making long term decisions as follows:
(a)They will inform the other parent of the decision to be made;
(b)They will consult with each other by:
(i)The parent making the initial proposal (“the first parent”) providing in writing to the other parent (“the second parent”) the details of any proposal and the intended date the proposal is to be implemented, at least one (1) month prior to the date when the proposal is to be implemented (unless the proposal relates to an acute or life threatening illness or injury when the timeframe will be dictated by the children’s medical needs);
(ii)If the second parent does not agree with the initial proposal, then the second parent will provide details of any proposed variations in writing to the first parent within seven (7) days;
(iii)If the second parent responds to the initial proposal with variations, the first parent will respond to the second parent about the variation in writing within seven (7) days to advise whether there is agreement; and
(iv)The parents will each make a genuine effort to reach a joint decision prior to the date the initial proposal is due to be implemented.
4.That should the parents be unable to agree in future on any significant parenting matters for the children, then the process to be used for resolving disputes about the terms or operation of these Orders is as follows:
(a)During the currency of appointment of a parenting co-ordinator, referred to in these Orders, raise the issue for discussion and resolution via that resource, and if not then resolved, by means of the following sub-paragraphs;
(b)The parents will consult with a Family Dispute Resolution Practitioner (“FDRP”) such as via K Family Services or a private practitioner to assist with resolving the dispute;
(c)The parents will pay the costs (if any) of the FDRP equally;
(d)If the parents cannot agree upon the FDRP, then the Applicant will nominate three (3) practitioners and advise the Respondent in writing the details of each practitioner’s fees, experience and availability;
(e)The Respondent will then choose one of the practitioners from the Applicant’s list within seven (7) days of receipt of the list;
(f)If the Respondent fails to choose a practitioner within the seven (7) days, the Applicant may choose a practitioner.
(g)Whichever way the practitioner is chosen, the Applicant is to arrange for an initial appointment for the parents to attend upon the FDRP as soon as possible and will notify the Respondent of the details of the appointment in writing as far in advance as possible of the appointment date.
5.That if either parent does not respond to the other’s proposal or does not engage in the dispute resolution process referred to in orders 3 and 4 above, then the first parent is at liberty to implement the initial proposal at the expiration of one (1) month from the date written notice of the initial proposal was provided to the second parent.
6.That the children shall live with the parents via a “week about” structure of equal time on the following basis:
(a)Time on the first weekend after the date of these Orders, with the father from 3.00pm or after school on Friday until 4.00pm on Saturday and on Sunday from 9.00am until 4.00pm, and on the following Thursday from 3.00pm or after school until 5.00pm that day, and with the mother otherwise,
(b)Time on the third weekend after the date of these Orders with the father from 3.00pm or after school on Thursday until 4.00pm on Saturday, and on Sunday from 9.00am until 4.00pm, and on the following Thursday from 3.00pm or after school until 5.00pm that day, and with the mother otherwise,
(c)Time on the fifth weekend after the date of these Orders with the father from 3.00pm or after school on Thursday until 4.00pm on Sunday of that weekend, and with the mother otherwise,
(d)Time falling on the seventh weekend after the date of these Orders with the father commencing at 3.00pm or after school on Wednesday until 4.00pm on Sunday of that weekend, and with the mother otherwise,
(e)Time falling on the ninth weekend after the date of these Orders with the father commencing at 3.00pm or after school on Tuesday until 4.00pm on Sunday of that weekend, and with the mother otherwise,
(f)Time falling on the eleventh weekend after the date of these Orders with the father commencing at 3.00pm or after school on Monday until 4.00pm on Sunday of that weekend, and with the mother otherwise,
(g)From and including the thirteenth weekend after the date of these Orders and thereafter, the children shall live equally with the parents in a week about arrangement, with the father in one week and the mother in the alternate week using the commencement of school on Monday as the changeover or if not a school day at 3.00pm;
(h)Unless otherwise agreed in writing, handovers shall occur by means of adopting the children’s conclusion or recommencement of school as the point of commencement or conclusion of a parent’s time with the children PROVIDED THAT IF the children do not attend school for any reason then the handover shall occur at the McDonalds Family Restaurant carpark, L Shopping Centre, Suburb M such that at the thirteenth week, these arrangements shall involve handovers on Mondays, occurring by either delivery and collection from school on Mondays or 3.00pm if a non-school day;
(i)For the purposes of handovers:
(i)handovers may be attended by an agent of the mother or the father, provided that the agent it known to each parent and known to the children; and
(ii)belongings passing with the children should be limited to items which can fit in the children’s schoolbag and unless otherwise agreed in writing.
(j)For the purposes of facilitating items passing between the households:
(i)homework, clothing received from the other parent and other items shall pass with the children by dropping any necessary baggage at an agreed place, provided that if no place can be agreed, then at the children’s school administration office for collection by the other parent on Monday afternoons or at handovers if a non-school day;
(ii)the items in Order 6(i)(ii) shall include the children’s items of comfort and sleep toy/s; and
(iii)each parent shall maintain sufficient uniforms so as the children pass between the households with the Monday clothing and that is the same clothing worn on the next Monday return to the other parent’s residence.
(k)On school holidays which fall after week thirteen referred to in Order6(g), unless otherwise agreed, the children shall live with their parents in the week about pattern established by these Orders through their end of term school holidays;
(l)On the following occasions a special arrangement shall apply, without make up time during the week about arrangements:
(i)On Mother’s Day, if the children are not already spending time with the mother, they shall spend time with her between 9.00am and 5.00pm that day;
(ii)On Father’s Day, if the children are not living with the father, then the mother shall return the children so as they are with him between 9.00am and 5.00pm that day;
(m)At Easter time, the children shall spend:
(i)Between 9.00am on Friday to 9.00am on Sunday with the Father, and between 9.00am on Sunday to 5.00pm on Monday with the Mother in 2025 and alternate years thereafter; and
(ii)Between 9.00am on Friday and 9.00am on Sunday with the Mother and between 9.00am on Sunday and 5.00pm on Monday with the Father in 2026 and alternate years thereafter.
(n)At Christmas time, the children shall spend:
(i)between 9.00am on 24 December and 3.00pm on 25 December with the father in 2024 and alternate years thereafter and with the mother in 2025 and alternate years thereafter; and
(ii)between 3.00pm 25th December and 5.00pm 26th December with the mother in 2024 and alternate years thereafter and with the father in 2025 and alternate years thereafter.
(iii)on the children’s birthday, if the children are not already spending time with the Mother by operation of this Order, then they shall spend between 11.00am and 6.00pm with her that day if a non school day and conclusion of school and 6.00pm if a school day.
7.That the parents will forthwith retain Ms N as parenting coordinator (“parenting coordinator”) for a minimum term of twelve (12) months from the date of these Orders, on the terms provided in these Orders and in the form of the parenting coordination agreement endorsed by Parenting Coordination Australia (Standard PC Agreement), provided that where terms of this Order conflict with the Standard PC Agreement, these Orders will prevail.
8.That the parents shall attend on the parenting coordinator as required by the parenting coordinator on a non-confidential basis.
9.That the parents’ parenting arrangements in relation to the children are as set out in these Orders.
10.That the parents will complete the appointment of the parenting coordinator, including:
(a)selection of the parenting coordinator (if otherwise than as named above in this order);
(b)execution of the Standard PC Agreement; and
(c)remittance of all requisite retainers and deposits.
11.That the parenting coordinator may assist the parents in the implementation of these parenting Orders in the following manner and on a non-confidential basis:
(a)By building consensus between the parents, including, but not limited to, by:
(i)developing and instituting guidelines for the implementation of these parenting orders;
(ii)developing and instituting guidelines for communications between the parents;
(iii)identifying, creating and implementing strategies for resolving conflicts between the parents; and
(iv)providing information respecting resources available to the parents for the improvement of their communication or parenting skills, and
(b)By issuing recommendations and/or proposed protocols that the parenting coordinator believes would be in the best interest of the children in the implementation of these orders and, in the event the parenting coordinator shall issue such recommendation or proposed protocol, shall provide the parents with written reasons for that recommendation or proposed protocol;
(c)That the parents shall complete any course/s recommended to them by the parenting coordinator;
(d)The fees, disbursements and other charges of the parenting coordinator will be shared equally by the parents, subject to the parenting coordinator's authority to reapportion the total parenting coordination costs between the parents as provided in the Standard PC Agreement.
(e)Either parent is at liberty to apply to the Court to resolve any issue arising out the other parent's non- payment of the fees, disbursements and other charges of the parenting coordinator;
(f)Subject to any applicable court order hereafter, if the parents are unable to agree on any decision affecting the parenting responsibilities or parenting arrangements for the children, they will refer the dispute to the parenting coordinator for resolution. The parents will not initiate or renew court proceedings on matters which are within the scope of the parenting coordinator's services otherwise than as provided for in these orders; and
(g)Either parent is at liberty to apply to the Court if either parent fails to comply with the recommendations or proposed protocols of the parenting coordinator and the recommendations or proposed protocols and the parenting coordinators written reasons for such recommendations or proposed protocols shall be available as evidence to be produced by either parent in any such application to the Court.
12.That the mother must strictly comply with all medications and treatment regimens and parameters prescribed for her by Dr O or any other psychiatrist (or General Practitioner on authority by her treating psychiatrist) on whom she attends on for treatment and management of her Attention-Deficit Hyperactivity Disorder.
13.That neither parent will use physical discipline or punishment on the children nor yell at the children in anger, nor permit any other person to do so.
14.That the parents and their servants or agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or alternatively their family, to or in the presence or hearing of the children and from permitting any other person to do so.
15.That unless in an emergency concerning the children, all communication between the parents shall be via email or via a parenting app which may be commenced by either parent at any time on notice to the other by sending an invitation to use of that app, with this app to be thereafter utilised by the parents for parental communication (or such other substitute app as may be agreed to between the parents in writing thereafter but if no agreement then by the father proposing by email to the mother a list of three (3) alternate comparable services and the mother selecting one from that list within five (5) days of her receipt of the father’s list and the father then forthwith advising the mother by email of his choice), and shall be limited to communication about children related issues.
16.That to facilitate the parents’ communication about the children, each parent must maintain any necessary subscription and technology to ensure their written parenting communication remains viable and each shall keep the other informed via the app or by email of a mobile telephone number for use in an emergency or urgent circumstances involving the children.
17.That in an emergency concerning the children and for the purposes of the parents’ selection of any new communication app, the parents may communicate together by text message and email.
18.That each parent must:
(a)strictly comply with the children’s prescribed medications and treatment plans and each keep the children’s school informed of any changes to these;
(b)not use the children as messengers between the parents;
(c)keep the other parent informed at all times of their residential address, mobile telephone number and an email address and advise the other in writing of any change/s to these details within twenty-four (24) hours of such change;
(d)keep the other informed in writing of the name, speciality and contact details for each of the children’s treating medical and allied practitioners; and
(e)inform the other as soon as reasonably practicable of the specifics and particulars of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by either child or both children whilst in that parent’s care.
19.That these Orders authorise each parent to communicate with the children’s school and any outside school hours care provider, about the children’s attendance and progress, and each parent is hereby authorised to request to be provided by these educational facilities with (at the requesting parent’s own expense, if any) copies of documents about the children including but not limited to report cards, assessments and school photograph order forms, and to attend at the children’s school and outside school hours care, for student events to which parents are ordinarily invited.
20.That to give effect to these Orders, the parents each have leave to provide a sealed copy of these Orders to the children’s school and any outside school hours care provider.
21.That these Orders authorise each parent to communicate with the children’s treating medical and allied practitioners about the children and to request to be provided by the practitioners with information about the children’s progress and treatment (at the requesting parent’s own expense, if any) and to discuss the children and their treatment subject to the usual discretion of each practitioner.
22.That to give effect to these orders, the parents each have leave to provide a sealed copy of these Orders to the children’s treating medical and allied practitioners.
23.That the parents will each take all reasonable steps to ensure that each parent is and remains authorised to contact the National Disability Insurance Scheme (“NDIS”) and any related agencies regarding the children, and that each parent is added to the children’s NDIS records and that of any related agency as a representative of the children, subject to any requirement of the NDIS and related agency, and to give effect to these orders the parents each have leave to provide these sealed orders to the NDIS and any related agency.
24.That the mother forthwith provide to the father, a copy of the children’s NDIS plan and details of any review and forthwith authorise the father to become a parent who is equally or jointly responsible for the plan and its implementation.
25.That the parents shall each have the opportunity to participate in any assessment regarding either/both child/ren for Autism Spectrum Disorder or other developmental, medical, psychological, mental health reason reasonably recommended by any medical or allied health professional on whom the children attend, including but not limited to providing any assessing practitioner/s with such information as is reasonably requested and required pursuant to that process, including attending and facilitating the attendance of the child/ren at appointments made pursuant to the assessment/s. Nothing in this Order requires the parents to attend at the same time.
26.That each parent shall:
(a)promptly notify the other parent of any significant illness or emergency in relation to the children or either of them and provide the other with reasonable details of the issue and the persons or person or health facility assessing or caring for the children or either of them;
(b)administer any medication prescribed for the children or either of the children, as directed by the medical professional who caused the prescription to issue;
(c)attend, comply with treatment regimes and follow all reasonably recommended care for the children or either of the children, excluding recommendations from medical practitioners who have ceased to care for the children as a result of a change of practitioner occurring as provided for in this Order;
(d)consume any medication as directed by their medical professional/s; and
(e)attend, and comply with treatment regimes of medical and allied professionals and follow all reasonably recommended care for their own health;
27.That each parent is restrained and an injunction pursuant to s 68B hereof is made, restraining each parent, without admissions, and whether by themselves, their servants or agents, from engaging or attempting to engage any person to conduct any surveillance of any kind or the other parent or the children.
28.That the parents have the opportunity to attend appointments for the children and otherwise to liaise with and obtain information and updates as to the children’s treatment (noting the parents have joint responsibility for decision making) from the children’s medical practitioners and allied health professionals, at the expense of the parent requesting, and these Orders serve and as authority for the same. Nothing in this Order requires the parents to attend at the same time.
29.That within fourteen (14) days of the date of these Orders, the father shall contact his preferred treating psychologist and arrange to complete a course of psychological therapeutic sessions as reasonably recommended to him by the practitioner or by his treating General Practitioner and to thereafter attend until he has completed those sessions, which shall include the components of the men’s behavioural change program as adapted for the father by his chosen practitioner.
30.That these Orders and the Court’s Reasons for Judgment delivered 13 May 2024, and the sealed affidavit of Ms P filed 2 April 2024, shall be provided by each parent to their own treating medical and allied health practitioner, and to every medical and allied health practitioner on whom the children (either of both) attend for treatment, and to the children’s school.
31.That in the event the mother:
(a)changes medical practitioners or allied health professionals, she shall provide a copy of these Orders and the Court’s Reasons for Judgment delivered 13 May 2024, and the sealed affidavit of Ms P filed 2 April 2024, to the medical practitioners and allied health professionals in the event that the care of support being provided relates to the children or the mother’s prevailing mental, emotional or psychological health; and/or
(b)complains or further complains to police about the father, she shall provide a copy of these Orders and the Court’s Reasons for Judgment delivered 13 May 2024, and the sealed affidavit of Ms P filed 2 April 2024, to the police officers with whom she takes up.
32.That the parties be granted leave to provide the documents referred in Order 31 to officers of the Queensland Police.
33.That the Independent Children’s Lawyer provide a sealed copy of these Orders, a copy of the Court’s Reasons for Judgment delivered 13 May 2024, and the sealed affidavit of Ms P filed 2 April 2024 to the Director-General, Department of Child Safety, Seniors and Disability Services (noting that a sealed copy of the affidavit of Dr F filed 30 May 2023 was provided in 2023 pursuant to the Orders of a Judicial Registrar made on 6 June 2023).
THE COURT ORDERS ON A FINAL BASIS:
34.That following compliance with Order 33 hereof, the Independent Children’s Lawyer is discharged.
IT IS NOTED:
A.That the Independent Children’s Lawyer has met with the children on two occasions.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Luxton & Rodley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
I am satisfied in this case that the best interests of Y and X, twins born 2016, will be served by me making orders, which the mother, the father, and the Independent Children’s Lawyer today have consented to me making.
As the assembled legal talent at the bar table – Mr Evans, a solicitor-advocate for the father; Mr Duplock, Counsel for the mother, and Mr Carlton, Counsel for the Independent Children’s Lawyer, Ms Lilley, who has been in this matter for some time – have all made submissions that these orders are in the best interests of the children, I give some weight to those submissions.
When the parties separated in July 2022, the children were approximately six years of age. Almost for the entirety of the time since then, and noting the father filed an Application in October 2022 in Division 2, the parties have been immersed by litigation, but not just litigation. The litigation has involved significant forensic investigation through expert reports, interim orders, attention by Registrars and others around the risk that these children are at in the care, primarily, but not only, particularly in the father’s care. It has caused, of course, as is always the case, a cautious approach by the Court.
Originally, orders were made by a Senior Judicial Registrar that time that the father would spend would be supervised. Hair follicle testing was undertaken by the father because of allegations made by the mother that the father was an abuser of alcohol and/or illicit substances. When the matter was transferred by the Senior Judicial Registrar to Division 1 because of the allegations being made and the forensic issues, the Senior Judicial Registrar was awaiting, it seems to me, a report from the first report writer, Ms C. She prepared a report that went for over 700 paragraphs. She was not a witness in this case that was tested. In fact, none of the witnesses were tested. Ms C had such significant concerns about the mother from her own observation, and no doubt guided to some degree by some of the concerns raised by Dr F, the single expert psychiatrist engaged, by the Independent Children’s Lawyer, that she in fact recommended a change of residence of the children.
Even though the father had, in October 2022, when he commenced proceedings, sought orders for week about time then, it seems clear that the evidence of Ms C, untested as it was, persuaded the father to file an amended Application in June 2023 that the children live with him and spend supervised time with the mother.
The mother raised a number of concerns about the father in her material during this case and in interviews with family report writers. Following the report of Ms C, and perhaps some uncertainty about the mother’s mental health functioning – she is acknowledged as having a diagnosis which is, if medicated properly, controllable – the change of residence application was brought by the father.
I have no doubt that such an application caused the mother great concern. She is defined by her parenting of these children, and even, I think, the thought that the children could live with the father, in some ways, it seems to me when I look at the length of and intensity of the mother’s trial material, which I am satisfied she prepared (although it may have, to some degree, been settled by the lawyer appointed under the s 102NA cross examination scheme), it seemed to almost exacerbate the mother’s need to identify the risks.
After the family report was prepared by Ms C, the matter came before a Senior Judicial Registrar in August 2023 for further determination. The effect of those Orders was that the Orders made by the Senior Judicial Registrar some nine months earlier should remain in full force and effect. That is, that the father’s time remain supervised.
This matter first came to my attention when the father filed an Application to Review the Order made by the Senior Judicial Registrar. I dealt with that matter in November 2023. For reasons published at the time (see Luxton & Rodley (No 2) [2023] FedCFamC1F 1045), cautious though they were because of the untested allegations, I took a different view to what were the appropriate interim arrangements for the children than that adopted by the earlier experienced Senior Judicial Registrars. I, of course, had more evidence than he had, including a report of the mother’s psychiatrist, Dr O.
For the reasons which I gave, I moved the time between the children and the father to unsupervised time, but not overnight. Ms Lilley, the Independent Children’s Lawyer, decided (a decision I fully support) a fresh set of eyes needed to look at this matter, and briefed experienced Social Worker, Ms P, to both interview and observe the children with their parents. Other parties were also interviewed by Ms P, as her report, dated 2 April 2024, just over a month ago, reflects.
Ms P had the benefit of reading the reports of Dr F and Ms C. She also had the benefit of reading significant affidavit material of the parties and had access to some subpoena documents. This is all reflected in her report. Ms P’s evidence also was not tested before me, as the parties have reached a final consent order today.
A court is not bound by a family report writer’s views or opinions. That has been the law in our jurisdiction for many years. However, Ms P opined that an equal time arrangement had some merit. That foundation included the fact that she, as a Social Worker, was not satisfied or persuaded that the father was the risk the mother was asserting and also, significantly relying upon the evidence of Dr O, took the view that the mother would support orders of the Court if they were made, even contrary to her desires. At paragraph 310 of her evaluation, for example, Ms P said:
Due to my assessment of the concerns raised by family members and in consideration of the material provided to me, it my assessment that ongoing supervision of [Mr Luxton] and the children is not warranted and unnecessarily reinforces the idea of a ‘good’ and ‘bad’ parent. [Y] and [X] are already spending unsupervised time with [Mr Luxton], and in my opinion, they have not shared any significant concerns about the time they have been spending with him in the present day outside of missing friends’ birthday parties.
I note that Ms P, of course, had the benefit of seeing the children after there had been a period of unsupervised time on an interim basis ordered by me in November 2023. At paragraph 316, when referring to the proposal for a “shared custody arrangement”, Ms P says, inter alia:
316.In the circumstance of shared custody arrangements, the children would have an equal opportunity to bond and nurture relationships with both of their parents and extended family members. Shared custody arrangements would support ongoing unsupervised time between the children and [Mr Luxton] which aligns with the children’s views. This is also recognised by [Ms Rodley] during her interview. These arrangements would also continue to allow [Y] and [X] to rebuild their trust towards [Mr Luxton] and would encourage parental cooperation, communication and joint decision making which could provide the children with an opportunity to observe their parents managing conflict and effectively co-parenting, providing that [Ms Rodley] is not actively undermining this, either consciously or unconsciously.
317.A possible challenge associated with shared custody arrangements is the clear disdain that the parents have towards each other. This could hamper joint decision making and further expose the children to parental conflict and hostility, negatively impacting their emotional wellbeing. However, in comparison to only supervised time, shared custody arrangements are likely to require the same frequency of changeovers between parents and therefore this does not deter me from this recommendation. Therefore, due to my assessment of the risk factors outlined above, it is my opinion that a shared custody arrangement between [Mr Luxton] and [Ms Rodley] is suitable for [Y] and [X].
Those core opinions, noting that Ms P, who appears to be trained in the English/American system where the term “custody” is a more familiar term than that used in our Australian legislation, then made recommendations which were consistent with those expressed views. It also included in those recommendations that the parents would reside within a reasonable distance from the children’s school; any communications required between parents occur through a parenting app to discuss the children’s emotional, behavioural and developmental needs; that changeovers occur at a neutral location; and that the children’s treating professionals remain consistent, with a copy of her report to be provided to them.
The orders I have been offered by the parties and the Independent Children’s Lawyer adopt those recommendations. At paragraphs 320 to 322, further recommendations are made which included something I raised earlier this afternoon, namely, that Mr Luxton liaises with the children’s treating professionals to fully comprehend the children’s developmental needs and medication requirements. Y and X do have some additional needs. They have been diagnosed, I think, both fitting within the spectrum of ADHD at least. There is a regime of medication that they are required to take to moderate their behaviour.
The mother is very familiar with this regime because she herself has a diagnosis of a similar nature. If there is any suggestion that ADHD would prevent a child from reaching their potential, the mother is a perfect example of that not being the case. This case has been driven though, to a large degree, by the system which found it impossible to make, understandably, findings about serious issues of risk, and as I have indicated, with the father having, from the earliest opportunity, sought an equal time arrangement. The cautious approach of the Court has been driven, in my view, by the mother’s insistence, supported by her family, mostly based on what the mother has told them, but also, to be fair, on a number of their observations that they have referred to, that the father presented as a risk.
The father has carried this odium upon his character since separation. Although the only evidence I have is from people in the maternal family connection, such as grandparents; the mother’s sister; and two of the three au pairs in recent times, the father’s concern, and he raises it in his material, is that the mother’s views of him and her perception that he is a risk to the children, has been shared with many others.
I am not in a position to indicate whether that has in fact occurred. Certainly, I am aware from the material that complaints have been made to police of alleged criminal behaviour of the father, none of which have been taken up by the police or have resulted in charges being laid against him. Specifically, in the father’s affidavit filed 1 May 2024, he swore that:
(a)“I did not poison our family dog” (paragraph 153);
(b)“I did not interfere with the coffee I bought, with my own, from a coffee shop for [Ms Rodley]…” (paragraph 154);
(c)“I did not ever poison the household water supply…” (paragraph 155);
(d)“I did not interfere with devices in [Ms Rodley’s] residence or personal devices” (paragraph 156)
(e)“I did not stalk any medical practitioners or staff of medical practitioners” (paragraph 157);
(f)“I have not followed either [Ms Rodley] or her family in a car or on a bicycle” (paragraph 158);
(g)“I have not attended [Ms Rodley’s] residence other than in the early phase when I collected personal chattels…” (paragraph 159);
(h)“I have not left an axe in the mother's yard…” (paragraph 160);
(i)“I do not have the capacity to listen to [Ms Rodley’s] conversations or what is said and done inside [Ms Rodley’s] residence” (paragraph 161); and
(j)“I have not hacked or accessed [Ms Rodley’s] email accounts...” (paragraph 162).
Those denials from the father, under oath, were made in circumstances where the mother has, to one degree or another, persistently asserted the father has done all those things or a combination of those.
When one reads the mother’s trial affidavit (containing 595 paragraphs and 359 pages of annexures) and her reply affidavit (containing 150 paragraphs and 249 pages of annexures) which she prepared and is very articulate, what can be seen is a lack of any corroborative or persuasive evidence to sustain these allegations. I make that comment so that those reading these Reasons for Judgment understand the Court’s clear position.
Now, to some extent, the order I have been offered today by the mother supports that view that no risks exist. I have been asked to make a notation, but elected not to do so, that “the mother does not press that the father is a risk to the children or the mother”. I am told that that was a notation the parties all supported be included in the order.
The mere fact is that the mother and the father had this case listed today for five days and they were perfectly entitled to press their cases and to test the evidence. However, based on the evidence I have read, I am comfortable in making the observations that I have made about the father not being a risk to these children. That now must be the position, on reflection, taken by the parents, because in the absence of that genuine, heartfelt reflection, they could not validly come to this Court and offer support for an equal time arrangement of unsupervised time.
Now, let me make it clear that, of course, the father himself made some allegations against the mother, and I am not satisfied those allegations are made out on the material before testing, but he was trying to seek an explanation for what he felt was the behaviour of the mother post-separation, which, notwithstanding the breakdown of their marital relationship, had the effect of significantly putting at risk his relationship with his daughters.
In trying to seek an explanation, he, maybe not surprisingly, thought there must be some deficiency in the mother’s mental health that could cause her to act in such a way towards him, the chosen father of these children. Again, perhaps the evidence, forensically obtained during the course of this case by Dr F and the further evidence of Ms C, supported what he did not want to happily accept about the functioning of the mother.
However, as I have already indicated, the evidence of Dr O and the clear, continued, high-level functioning of this highly intelligent mother, who is a professional in a management position in a corporation, suggests that she both has some insight into her mental health challenges and manages them effectively. She does so at work. The likelihood is she does so day-to-day with her children, and the father can never know because he is no longer a member of the household, any more than the mother can know what happens in the father’s household.
The orders which I am asked to make can only be made if the Court is satisfied the orders are in the best interests of the children. Since 6 May 2024, the statutory pathway for parenting orders has altered. Now, there are just two objects in s 60B of the Family Law Act 1975 (Cth) (“the Act”):
(a)s 60B(a) is to ensure the best interests of the children are met; and
(b)s 60B(b) is to give effect to the Convention on the Rights of the Child.
During my term as a judicial officer, I have navigated the changing landscape for parenting orders from s 68F through s 60CC of the Act, the additional and primary considerations, and now a new regime contained within four sections of a new s 60CC of the Act. The destination, however, has never altered. It is what is in the best interests of the children.
I am satisfied that I have considered the prescribed obligations of a Court when determining a child’s best interests, and subject to s 60CC(4), the matters set out in 60CC(2), which I will refer to in a moment, being the general considerations. Importantly and relevantly in this case, the Court must also consider the matters set out in s 60CC(3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
This is the first judgment I have given in some form that adopts the new pathway. I do not expect this to be a treatise of the new legislation. One will only observe in time how long it takes for judicial officers and practitioners to adopt in s 60CC(2)(f) everything that was previously in either the primary or additional considerations. Be that as it may, I will shortly deal with these factors.
As the children (the twins) are Indigenous, I must consider their right to enjoy their Indigenous and Aboriginality, and any parenting order I make that involves an Indigenous or Aboriginal child must include a consideration of any likely impact. Again, because I am being asked to make a consent order today, s 60CC(4) says that, “If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).”
I have dealt with the issue of risk. I am absolutely satisfied it is in the best interests of these children that they have the opportunity for a meaningful relationship with both their mother and father. There is no doubt that that exists with the mother today. She is a loving and caring parent who has devoted herself, whilst still maintaining, notwithstanding 12 months maternity leave, to her career.
However, the children’s time with the father that has occurred since separation has significantly reduced the opportunity of these children to develop a meaningful relationship with their father. The orders which I am asked to make today will nurture that. I choose not to, in these reasons, refer to other evidence in the mother’s affidavit that, on its face, might be dismissive of any role the father has played with the children during their upbringing and his preference for some of his own personal activities rather than being a carer of the children. Nonetheless, with an equal time regime occurring in about 13 weeks’ time, their attitude to parenting and their capacity to co-parent is going to be tested.
The orders I am being asked to make by consent seek the involvement of a parenting coordinator. The role of a parenting coordinator seems to me to be designed to keep parents who have the capacity to be focused and directed to their children’s best interests, on track. Some parents, sadly, either by way of their own upbringing, by unfortunate events in their life either as an adolescent or as a young parent, have deficiencies in their capacity to parent.
I do not regard this case for these parents as identifying any such significant deficiencies. That means that if they keep their eye on the ball, which is the best interests of these children, there is every opportunity that the adjustments, which are necessary in each household no doubt, to ensure these children move to and from school, from one parent’s home to the other parent’s home, can be within a range of normality.
There will be differences because these are different parents who parent differently. However, they are capable, it seems to me on all the evidence, including the assessment by Ms P, of parenting in a fairly consistent manner. Communication is the key.
Parenting apps are merely a facilitator of communication to hopefully communicate in a very basic way, respectfully, with insight into the needs of their children and showing that they respect the other parent’s important role in the life of their children. A parenting app does not cure that, it just makes it easy for parents. No-one suggested parenting is easy. Being a good parent is hard. These parents will be tested in this new regime.
I am encouraged by all the submissions I have heard, to have the hope that they can achieve that level of cooperative and respectful communication that can ensure these children can move easily between one household to another; and from school into home.
The order for equal time will ultimately, I think, fairly allow the mother, importantly, as she wishes, to continue to encourage the children’s identification as Aboriginal children to be maintained and explored. It may not get the same treatment in the father’s home as he is not Aboriginal. That is to be expected to some degree, but there is nothing in the material I read that suggests to me that he does not respect the Aboriginality of these children and understands how important it is to them and their identity.
I think it is important that these Reasons are provided to those people who might come in contact with this family in a professional capacity. These Reasons cannot and should not be further published to the wider Q School community or others, but at least the father believes – and this might be a belief reasonably based, on the untested evidence, that his reputation or position as the father of these children has been damaged in the wider school community, either by comments made directly or inferentially by the mother or those who genuinely support her. This must stop now.
These orders are a testament to both parents saying to this Court that whilst they may still have some concerns about the other parent, their concerns about that other parent are outweighed by the benefit to these children of having both of these parents sharing equally in the life of these children. Any ongoing denigration of a parent post today – I cannot do much about what has happened in the past, would be a clear indication, it seems to me, that the parties before me today have not entered into these orders with complete and honest and genuine commitment. Unless that is exercised daily, often by saying things that you might not absolutely believe, but you know you should say, but more importantly not saying something that you feel that you should not say, if you cannot learn those lessons, then Y and X could well be consigned to ongoing management of parental conflict which will be the most debilitating issue for them to deal with.
Parental conflict is created by parents. Parental conflict is stopped by parents. These parents, by these orders which I will make because I do believe they are in the best interests of Y and X, are based on the parents actually changing the way they have acted to date and demonstrating to their children how important it is to these children that they have a loving mother and father in their life who are both available and who want the best for them.
I make the orders, by consent, as set out at the commencement of these Reasons, which I find are in the best interests of Y and X.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 July 2024
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