Mayo & Mayo
[2022] FedCFamC1F 556
•18 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mayo & Mayo [2022] FedCFamC1F 556
File number(s): PAC 114 of 2020 Judgment of: CAMPTON J Date of judgment: 18 July 2022 Catchwords: FAMILY LAW – PARENTING – Where the parents’ relationship since separation has been defined by intractable conflict to which the children have been exposed – Final parenting orders made by consent including provision for ongoing family therapy. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)18 July 202218 JULY 2022
Cases cited: Atkins & Hunt [2017] FamCAFC 131 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 18 July 2022 Place: Parramatta Solicitor for the Applicant: Digital Age Lawyers Solicitor for the Respondent: Dean Lawyers Counsel for the Independent Children's Lawyer: Mr White Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 114 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MAYO
Applicant
AND: MR MAYO
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
18 July 2022
THE COURT ORDERS THAT:
1.I extend the time for the period of appointment of the Independent Children’s Lawyer, subject to the Independent Children’s Lawyer obtaining the benefit of an extension of such funding from the Legal Aid Commission to 1 February 2023, noting that such period of extension of the Independent Children’s Lawyer will ensure the implementation of the Order 2.22 as to for the continuation of therapy with Dr B.
2.By consent, orders are made in accordance with the paragraphs 1 to 26 of Exhibit D as attached hereto noting the amendments in paragraph 2 in respect to the dates of birth of X born in 2009 and Z born in 2013, together with orders pursuant to 65DA of the Act.
3.The mother is to contribute the sum of $225 to the father’s costs of obtaining the second report of Dr B and such sum is to be paid into a bank account as nominated by the father in writing within 2 months of the date of these orders or such further time as agreed in writing.
4.Save and except as provided for in these orders, all outstanding applications and responses are dismissed.
5.A copy of the reasons for judgment in making the consent parenting orders have been taken out and placed on the Court file.
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 Mayo & Mayo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are parenting proceedings between Mr Mayo (“the father) and Ms Mayo (“the mother”) as to the parenting of their three children:
(a)X, born in 2009 aged 13 (“X”); and
(b)Y, born in 2011 aged 11 (“Y”); and
(c)Z, born on in 2013 aged 8 (“Z”), collectively (“the children”).
The parents separated in December 2018, two years after moving to Australia from the United Kingdom with their children. At the time of their separation the children were nine, seven and five years old respectively. Initially the children lived with the mother and spent time with the father during the day. There was a short period when they spent some overnight time with him in early 2019 before their time with the father ceased altogether.
These proceedings were commenced by the father filing an Initiating Application in the Federal Circuit Court (as it was then) on 10 January 2020. Since that time, the parents have engaged in intense litigation, each filing multiple interim applications and alleging contraventions of interim orders by the other. The proceedings have been before the Court on more than 12 occasions since they commenced two and a half years ago, and the parents have required various and numerous interim determinations.
The parents’ relationship since separation has been defined by intractable hostility and conflict. The children have been exposed to this conflict both directly and indirectly. Each of the parents makes allegations of the other of being unable to prioritise the children’s needs and have made conclusive, self-serving statements as to their own willingness to communicate with each other so as to best promote the children’s interests.
Throughout the litigation, the parents have had the benefit of comprehensive expert opinions as to the effect that their conflict has had upon the children. Those opinions are contained in reports of a Court Child Expert. The first dated 17 May 2021 is Exhibit A in the proceedings before me today (“the first family report”), and the second dated 5 July 2022 is Exhibit B (“the second family report”).
In the first family report, the Court Child Expert set out the children’s strong and highly negative views of the father and recorded a conclusion founded from what the children had said during the interviews and observations that the mother has shared information with them about the parental dispute and the Court proceedings. The Court Child Expert set out clearly the highly detrimental impact that such conduct would have on the children. She opined that none of the children impressed as being able to make an assessment of the implications or impact of them having no relationship with the father, and that the children’s views had been significantly influenced by the mother.
The Court Child Expert in the first family report recorded the multiple failed attempts to commence the children spending time with the father and observed that they experienced extreme and disproportionate levels of distress when exposed to the father for the purposes of the assessment. The Court Child Expert further opined that the children’s relationship with the father could only be repaired with therapeutic support for the children, which in turn had to be supported by the mother. If that process did not or could not occur, the Court Child Expert suggested that it would be in the children’s best interests to have a change of residence and commence living with the father.
In addition to recording the high level of discord between the parents post-separation and the environment of animosity that existed between them, the Court Child Expert set out how parents who conduct themselves in that way cause children to align themselves with one parent to manage their psychological distress. She set out very clearly in the first report how this circumstance poses a risk to the children. She made it clear that that such risk includes the children feeling unloved and not valued by the parent whom they do not see, and the inhibitive impact it may have on the children’s identity development and conflict resolution skills. The Court Child Expert said that it could lead the children to have unrealistic views about one parent, and to value them or to idealise that parent which as they grow older could damage their relationship with the other parent.
The Court Child Expert postulated whether, at the time of the first family report, the children’s relationship with the father was irreparable.
Against that background, to their credit, the parents agreed, to a raft of comprehensive orders that sought to right the ship for these children on the first day of what was listed to be a four-day final hearing commencing on 8 February 2022. That comprehensive set of orders included for the parents and the children to attend upon an expert family therapist, Dr B, and for there to be a regime of the children spending time with the father on alternate weekends commencing in March 2020 and for some limited time on other occasions. The reports of Dr B are contained in evidence before me, being her first report dated 4 February 2022 and her second report dated 17 July 2022. Collectively those reports were marked as Exhibit C before me.
The process of therapy was directed, as I have indicated earlier in these reasons, to address the circumstances confronting these children having experienced lengthy periods of an absence of the father in their lives. After the implementation of the family therapy, the children started to spend supervised with time with the father by way of Zoom calls and then began spending face‑to‑face time with him in March 2022. What that told me, in my capacity as a judge, was that these parents do have the ability, if they are so minded and sufficiently motivated, to promote the children’s best interests. A reading of the material gave me great hope for the children, and it seemed at that point in time that perhaps the family had turned the corner.
However, the consent regime made in February 2022 then developed to somewhat of a “U‑turn” as far as the children were concerned. Shortly after the children commenced face‑to‑face time with the father, X, the eldest child, became aligned with the father and remained in his father’s care. The mother subsequently decided it would be in the best interests of Y and Z to stop seeing the father.
These children were again confronted by a similar circumstance to that which they experienced prior to the orders of 8 February 2022. The extreme mistrust and negativity that existed between the parents had again exploded and mushroomed into further conflict. By the actions of each of the parents, the preservation of the sibling relationship, which the Court Child Expert identified as fundamental to the children, was put at risk.
The very matters that the father made complaint of as to the mother’s behaviour in aligning the children with her previously and not facilitating their relationship with him were echoed in X’s comments and phrases during his interview with the Court Child Expert in preparation for the release of the second family report this year. What was seen as remarkable progress for the children occasioned by the parents from February this year looked at risk. All of the breaches of trust and confidence and feelings of insecurity that the parents exhibited themselves resurfaced.
The Court Child Expert made significant criticisms of the father undermining all the positive progress the family had made since the orders of 8 February 2022. She recorded the possibility of negative dialogue having occurred between the father and X about the mother, just as the father had complained the mother had undertaken prior to February. The Court Child Expert identified in the second family report the mother’s failure to disclose in the prior assessment process particulars of the conflict between she and her current husband, including the family violence occasioned of a physical, verbal and psychological nature.
And so the Court was again presented with unsafe behaviour from both parents, with their incapacity to communicate and to co-parent. Against that background, they again come to the Court in an atmosphere of stress and tension about the parenting arrangements for the children. The repeat in this kind of behaviour after so many years does each of the parents little credit.
I accept that there may have been a learning through this process for each of you as parents, and that you may now have some understanding that your children cannot be exposed to continuing conflict and that the primary focus between you ought be, if possible:
(a)a demonstration going forward of your willingness to be compliant with court orders; and
(b)to ensure that the objects of the orders are facilitated.
Absent each occurring, there is a high likelihood of this chronic event being presented to the Court once again.
In the second family report, the Court Child Expert cautioned:
180.The children have been living with high levels of stress and tension about the parenting arrangements for several years. If the children continue to be exposed to the parental conflict and the concerning behaviours that the parents have exhibited, they are likely to develop significant difficulties with their development and wellbeing, in particular, their psychological wellbeing and capacity to navigate relationships.
Notwithstanding the parents’ longstanding conflict and apparent absence of capacity to prioritise their interests of the children above their own, they have today, the first day of what was a four day trial before me, reached agreement as to the future parenting of their children on a final basis. That agreement has been reduced to a Minute of Order document marked as Exhibit D in these proceedings before me.
I commend each of you, as parents, for taking the decision as to the terms of regulating the future parenting your children into your own hands. It is a much preferable course than leaving it to me.
I remind each of you that the agreement that you have now reached is to be formalised by way of orders. Orders are not guidelines or suggestions. They are made to be complied with.
Both you, as parents, are on notice that should you fail to comply with these orders that will be made, or if you fail to facilitate the objectives of the orders, you will each expose yourselves and your children to the possible binary recommendations contained within the first and second family reports.
That is, should you fail to protect your children from the risk of harm of exposure to ongoing parental conflict, the Court may be required to take the extreme steps identified in the second report to promote your children’s interests. So that it is not uncertain, that binary outcome would be devastating for the children and undoubtedly for each of you.
Pursuant to Order 29 made on 8 February 2022, the cost of the updated report of Dr B that has become Exhibit C of $1,100 was met by the father in the first instance, with a capacity for the father to seek a contribution by the mother to cost of that report at the trial. The father, pursuant to leave granted on 8 February 2022, seeks an order that the mother contribute half of the cost of Dr B’s report, being a sum of $550.
The relevant principles in respect of costs are well settled and set out in detail in the decision of the Full Court in Atkins & Hunt [2017] FamCAFC 131. While the general position established by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is for each party to bear their own costs especially in circumstances of compromise of an outstanding piece of litigation, s 117(2) of the Act allows the Court to make such costs as it considers just if there are circumstances that justify it to do so.
In considering an order for costs the Court is required to have regard to the relevant considerations set out in s 117(2A) of the Act. In respect of this application, I have no evidence of the financial circumstances of either party. Neither party has filed a cost notice in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father contends that there should be a contribution by the mother to Dr B’s report in that both parties have received the benefit of the report, and that the report and the process of therapy has been instrumental in the compromise of this matter. The mother opposes any contribution in circumstances where she contends that neither party was successful and implicitly contends that the presumption as contained within s 117(1) of the Act had not been displaced.
Taking into account the matters that have been identified by way of submissions, the fact of the compromise in the proceedings, and the benefit the parties have obtained from Dr B’s report thus far, I am satisfied on balance that the circumstances do justify the contribution by the mother to the father’s costs of the report. I determine, as permitted by way of the broad discretion available by way of s 117(2) of the Act and as identified in the relevant authorities, that the contribution made by the mother should be in the sum of $225.
For the all of the above reasons, I make orders as set out at the forefront of this judgment.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 18 July 2022
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