McCarthy & Sharp (No 2)
[2024] FedCFamC1F 905
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McCarthy & Sharp (No 2) [2024] FedCFamC1F 905
File number(s): BRC 10683 of 2022 Judgment of: BAUMANN J Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – CHILDREN – Where the final hearing was unable to proceed – Interim hearing conducted instead – where the Applicant and the Independent Children’s Lawyer urged the Court to change the child’s primary place of residence on an interim basis – Child to live in a week about arrangement on an interim basis Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 32 Date of last submission/s: 15 November 2024 Date of hearing: 15 November 2024 Place: Brisbane Counsel for the Applicant: Mr D Carlton Solicitor for the Applicant: Ferrall & Co Lawyers Counsel for the Respondent: Mr P Baston Solicitor for the Respondent: Rosen Lawyers Counsel for the Independent Children’s Lawyer: Ms D Wardle Solicitor for the Independent Children’s Lawyer: Gary Rolfe Solicitors ORDERS
BRC 10683 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS McCARTHY
Applicant
AND: MS SHARP
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
Living arrangements
1.That the child, X born 2018 (“the child”) live with the Applicant mother until 1 December 2024.
2.That the child shall spend time with the Respondent mother from 4.00pm on 22 November 2024 until 4.00pm on 24 November 2024.
3.That commencing on 1 December 2024, the child shall live with:
(a)the Respondent mother from 4.00pm on 1 December 2024 until 4.00pm on 8 December 2024;
(b)the Applicant mother from 4.00pm on 8 December 2024 until 4.00pm on 15 December 2024; and
(c)Thereafter, with each parent in the same alternating week pattern until the Court further orders.
4.That the time the child spends with the parents pursuant to these Orders shall continue in the manner outlined at Order 3(c) hereof regardless of any school holidays, public holidays, non-school days or special days.
Changeover
5.That all changeovers shall occur at McDonalds Restaurant in Town B.
6.That no other person shall attend such changeovers with the parents and the parties shall not record any changeovers occurring.
Family therapy
7.That the parties continue to attend upon Ms C (“the family therapist”) with the child.
8.That both parents shall meet the cost of or any gap payable for appointment fees incurred in relation to the child equally (such appointments shall be taken to mean for counselling only, not reports unless jointly agreed by both parents, in writing, in which case the costs of such jointly agreed reports shall be shared equally between the parents).
9.That the parents shall solely meet the cost or any gap payable for appointment fees incurred in relation to any session they are individually directed to attend by the family therapist, and should the parents attend for any joint sessions at the direction of the family therapist (either in person or by telephone) the parents are to share the cost for appointment fees incurred equally.
Medical
10.That within two (2) business days of this Order, the Respondent shall inform the Applicant and the Independent Children’s Lawyer of:
(a)the names and address of all treating medical or other health practitioners that treat the child; and
(b)the next appointment for those practitioners for the child.
11.That the parents must keep each other informed of the date, time and place of all medical or other health practitioners made for the child, together with the name of the treating medical practitioner.
12.That the parents be at liberty to attend all medical appointments for the child.
13.That the parents shall sign any authorities or other documents (if any) as may be required to authorise any doctor or specialist upon whom the child has attended or does attend while in their care to forward to the other parent, at the other parent’s expense, copies of any medical reports.
14.That the parents shall keep each other informed as to any serious illness, accident, hospitalisation, or medical condition (other than minor childhood ailments) with respect to the child while they are in that parent’s care immediately via the parenting app and keep the other parent informed of any medication to be taken by the child as soon as practicable and within twenty-four (24) hours.
Education
15.That the child shall attend school at D School (“the school”) until otherwise ordered.
16.That the parents shall do all acts and things necessary to ensure that both parents are listed as emergency contacts for the child on the child’s school records.
17.That each parent shall be at liberty to attend the child’s school sporting, cultural or extra-curricular activity events or training sessions that parents are ordinarily invited to.
18.That the parents are at liberty to obtain all information concerning the child’s education at their own expense as follows:
(a)both parents shall have access to the school reports of the child by electronic means through an arrangement with the school;
(b)that school photographs of the child are available to either parent after payment to the photography business which took the photographs; and
(c)school correspondence shall be available to either parent.
(d)That each parent is at liberty to provide a copy of these Orders to the child’s school.
Communication
19.That the parents shall communicate with each other by way of the parenting app known as the Our Family Wizard (“the parenting app”).
20.That the parents shall not make any parenting arrangements with the child directly or have the child pass on messages to the other parent.
Restraints
21.That the Respondent is restrained from attending on the campus of D School until time has progressed in accordance with Order 2 hereof.
22.That during the time the child is spending time with either parent, that parent shall:
(a)not engage in discussing adult issues or these Court proceedings with the child;
(b)actively promote the child’s relationship with the other parent and speak of the other parent respectfully;
(c)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(d)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(e)not be under the influence of illicit substances whilst the child is in their presence and they shall not expose the child to illicit substances, drug paraphernalia of other persons under the influence of illicit substances;
(f)not consume alcohol in excess of the legal blood alcohol concentration limit of 0.05% whilst the child is in their presence, and they shall not expose the child to other persons consuming alcohol excessively whilst the child is in their presence;
(g)not expose the child to any domestic violence, verbal, emotional or physical abuse;
(h)not physically discipline the child or permit others to physically discipline the child;
(i)not record sound, video or pictures of the child for the purposes of gathering evidence;
(j)not publish pictures of the other parent (without their consent in writing) or make adverse comments in relation to the other parent online, including via social media; and
(k)not engage, request, retain or employ any other person or organisation or entity to record or monitor the child at any time.
23.That should any third-party attempt or do any act as set out in Order 23 hereof, then that parent will remove the child immediately from the third party’s presence or remove him as soon as is practical to do so.
Airport Watchlist
24.That until further order, the parents, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the child from the Commonwealth of Australia.
25.That the Marshal and all officers of the Australian Federal Police and of the police forces of the various States and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said child’s name on the Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watchlist for a period of two (2) years from the date of these Orders.
THE COURT ORDERS UNTIL FURTHER ORDER:
26.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 24 March 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
27.That each party file and serve on each other by no later than 4.00pm on 17 March 2025:
(a)one (1) consolidated affidavit updating the evidence in chief already filed; and
(b)a precise minute of the final orders sought.
28.That no party shall be entitled to rely upon any other affidavit material not filed in accordance with these directions without leave of the Court.
29.That the Independent Children’s Lawyer be at liberty to apply to have the matter re-listed.
IT IS NOTED:
A.That it is recommended the parents attend upon Dr E and determine who shall be the treating professionals associated with the child and give weight to the recommendations of Dr E.
B.That it is recommended that no other treating professionals be engaged in relation to the child other than those recommended by Dr E.
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 McCarthy & Sharp 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:
It is not necessary, in respect of this interim decision, to deal with all the evidence and the reasons as to why the Court was unable to proceed with the trial this week and have now had to move into interim mode. It is known to the parties at the bar table, even Mr Baston of Counsel and his new instructor, who only come on the record today.
X, born 2018, is currently being cared for by a Court Child Officer in Court Children’s Service of the Court. He was brought here today by the Respondent, Ms Sharp.
X has not been spending time with the other mother figure in his life, the Applicant Ms McCarthy, consistently. There are arguments about why that is so. I cannot test those at this date, but it does ring in my ears the undertaking given by Ms Sharp when the matter was before me on 15 August 2024, when she withdrew an Application to suspend and/or seek that time be supervised, that she would comply with the Order. She has not done so. The reasons why she has not done so consistently and therefore removing the opportunity for X to spend meaningful time with Ms McCarthy, will be further examined at the trial.
The failure by Ms Sharp to comply with Orders is the primary foundation for Ms McCarthy seeking, as she has and as she continues to maintain, even on interim basis, that it is in the best interests of X that he live with her.
Little X is six. We now know that he has been diagnosed by paediatrician Dr E with autism spectrum disorder (“ASD”). He has a support plan available to him from 1 November 2024 for 12 months. That support plan will be available wherever the child lives. The plan is not specific to a parent, but to a child.
INTERIM HEARING
When the case was not able to proceed to final hearing yesterday, the matter was listed today for an interim hearing. The interim hearing was seen in the context of a significant amount of material in affidavits, but does not, on this basis, include a review of a tender bundle from the Independent Children’s Lawyer (“ICL”) that was many hundreds of pages. A more limited bundle has been provided to the Court and to the parties. I made it clear yesterday that one of the important issues to me was what were the views of Dr E, the paediatrician who assessed in early 2024 that X fell within the diagnostic criteria of ASD, a fact that, to some degree, was unknown to the Court through lack of proper disclosure of material to the Court in the case outlines – also late – but which became apparent yesterday.
What was also unknown to the Court until today, because no one informed the Court, for reasons I do not know, is that Ms McCarthy had a pre-arranged appointment with Dr E yesterday.
It is important because Dr E seems to be the practitioner that both Ms Sharp and Ms McCarthy have sought advice from and/or engaged with recently.
There is a history in this matter of the parties wanting an expert who confirms their view of the facts and/or their view of what is in X’s best interests. This sort of evidence gathering has not been helpful.
Consistent with that concern, I agree with Ms Wardle of Counsel appearing on behalf of the ICL, that moving forward there ought be a very clear order (and I will be asking the ICL to prepare this order) that no interaction between the child with the other parent or any other person is to be recorded. This child does not need to be the subject of evidence gathering. He is six years of age. He is entitled to enjoy the next three weeks of school and the six weeks thereafter of recreational school holidays, preparing for what seems to be grade one in 2025.
Child’s residence and schooling
Ms Wardle, on behalf of the ICL, whilst having a proposition for change of residence, opened her submissions today, properly in my view, by identifying a concern of the ICL about the child’s lack of attendance at school. I share her concern. It is a concern reflected in Exhibit 1 today, a letter from D School signed by the principal, Mr F, that reflects that for the 2024 school year, X has missed 20 days in term one; 13 days in term two; 30 days in term three and has not been at school at any time during term four.
I appreciate from the evidence offered by Ms Sharp in her material that she seeks to explain that away. In my view, those explanations do not satisfy me on an interim basis that it is impossible to get X to school.
It may reflect that Ms Sharp has not been able to get him to school. Ms McCarthy says, through her Counsel Mr Carlton, who supported the position of the ICL or vice versa, that there be a change of residence, accepted the challenge that I put to him for his client to demonstrate that she can get this child to school. It may not prove as easy as Ms McCarthy believes.
Nonetheless, it is an important part of the decision-making basis today, in my view, that where Ms Sharp has not been able to demonstrate the capacity to get the child to school, it is in the child’s best interest that he go to school and that Ms McCarthy should have the opportunity to demonstrate that is possible. I am comforted by the fact that Dr E is likely to be available to assist with support and advice.
The competing proposals between the ICL and Ms McCarthy, who are similar, and Ms Sharp is that the ICL and Ms McCarthy say there should be an immediate change of residence. As will be apparent from the exchanges between the bench and the bar table, I am not comfortable with changing residence and reducing the amount of time available for X to spend with Ms Sharp in the way they propose. I hold very real concerns on, albeit the untested evidence, about the capacity and the stress that this little six-year-old will face by such an event. Against that is the proposition of Ms Sharp offered this morning. It begins with a proposition that X live in a week about arrangement. I do not ignore the strong submissions made by Ms Wardle of Counsel for the ICL and Mr Carlton of Counsel, in his usual eloquent self on behalf of Ms McCarthy, that the Court can have no confidence at all that this order will be complied with.
Those submissions do weigh heavily on my mind, because if they are right, X is going to be confronted by further uncertainty and instability, a repetition of the at times toxic, entrenched and significantly unhelpful post-separation dysfunctional relationship which Ms Sharp and Ms McCarthy have been involved in. As to why that occurred, and even if it is relevant to the long-term future, they are matters for trial. However, in my view, on balance, and in exercise of my discretion, the child should spend three weeks of the school year that remains at school. I am prepared to take the view that that is best likely to be facilitated on the evidence by Ms McCarthy, although not without difficulties. Three weeks for X without spending any time with Ms Sharp would, I think, be quite confronting.
I propose, therefore, as I indicated to the parties as an alternate proposal, to order that the child, X, spend time with Ms Sharp over the weekend, which is effectively the middle weekend of the three-week period that we have got. You can pick out the date. Then the week about proposed by Ms Sharp for school holidays shall commence, on the basis that the child will begin spending time with Ms Sharp for a week in the first week of the school holidays and week about throughout.
I have not considered whether it is possible for these parties to allow X to enjoy the benefits of Christmas, not just as a family, but in circumstances to where both parents have an opportunity to share Christmas with him. I am not prepared to expose him to conflict at Christmas or being required to go to a contact centre, McDonald’s or some other place, for the mere point of spending Christmas with both parents. In my view, Christmas will lay where it lays. He is six, and I am sure if there is a desire to share with him, as is often the custom in this country, gift giving, extended family and the like then doing it twice, is not going to be a problem. I do not have sufficient evidence to know whether the fact that he attends D School means that his expression or observance of faith requires him to attend church at some time over the Christmas period, but in my view, if that is part of what he does, the parent who has X in their care can ensure he maintains a desired faith connection which has been reflected by attending D School. I will hear submissions about the other ancillary orders that are sought to scaffold this arrangement.
I take on board Mr Carlton’s strong submissions that this will fail and that as a result X will be further traumatised. I propose to make provision for the matter to be listed on short notice. I indicate to the parties, of course, that I will not be sitting between 10 December 2024 and 20 January 2025. I will make arrangements, if required, for my staff to engage me if required on this matter during that period. I will deal with it remotely if required. I would hope that will not be necessary. I would hope that both Ms Sharp and Ms McCarthy can see the benefit for X of him completing his school year and having week about recreational time over the festive season which he is likely to enjoy. If that occurs well, then after that approximate nine-week period, he can begin grade one at D School on a week about arrangement with both parents getting him to school.
I do not think it is necessary, but I am prepared to hear submissions in this respect to interrupt the week about arrangement that will occur from the start of the holidays with telephone time or the like. Whilst I appreciate that X might like to speak to the other parent, it might be a test of their capacity to put his needs above their own if he expresses such a wish to facilitate that occurring.
At some point in time, these parents will need to act as parents and not litigants. At some point in time, these parents are going to have to stop trying to gather evidence and damage the other parent, who they chose to be the co-parent of this child, in the way that their relationship developed. They will have, between now and when the trial returns to this Court, an opportunity to demonstrate that they have taken on board these comments and shown their capacity to elevate their behaviour so that it is focussed on the best interests of X rather than, as I sadly have to observe by the nature, the tenor and the focus of the material, substantial as it is that I have been asked to read and have read in this case, on the other parent.
It would be a sad outcome for X if by the time we get to the further hearing of this case, the Court is left with but one opportunity; that is to select one of these ladies as X’s primary carer with little involvement by the other parent. If they keep driving the Court to that outcome, that is unlikely to be in X’s best interests, but if that becomes the least worst option, then the Court will have to adopt it.
I am hoping that this period between now and the trial will manifest in a change of behaviour by the parties. My assessment is, on the untested evidence to date, and the absence of either party benefiting me with any profile of their support or psychological outcome, save for the psychiatric report over 12 months ago of a cross-sectional assessment by a psychiatrist, that they are capable of working together in X’s best interests.
What the past period of time since separation occurring (in this case just over two years ago) demonstrates, is that they have not shown the capacity to work together for X’s benefit. I have an open mind to being convinced otherwise. The orders will be, in respect of time, that Ms McCarthy will be able to collect X from care today.
The submission about how that occurs requires consideration. My preference would be that Ms McCarthy just goes, picks him up and takes him home. I think any other sort of outcome which involves goodbyes and things are problematic, but I will hear submissions on that. I am also happy to hear submissions in terms of some of these ancillary orders, but I am happy to use Mr Baston’s template, only for the point.
I understand that family therapy with Ms C is agreed.
Upon the rising of the Court, Ms Sharp shall go to level three and indicate to X that he will be going home today with Ms McCarthy and that she will see him in a couple of weeks’ time, noting it is likely that X may be distressed. Ms Sharp is required to leave level three within 10 minutes.
Ms McCarthy shall attend level three upon Ms Sharp leaving level three and thereafter shall be entitled – in terms of the orders today – to take the child to her residence.
I am going to direct that each party may, by 10 March 2025, file and serve one further affidavit of evidence-in-chief. No further witnesses without leave. No reply. Just updating events since 15 November 2024.
I want each party to file and serve by 17 March 2025 a minute of final order they seek.
A court child expert shall facilitate the changeover if required.
I am not critical of Ms Sharp not preparing X for this event, because there was no reason that she knew what was going to happen, or whatever. So, she might have presumed it, there might have been some discussions with her sisters and that, but that is okay. I think that is the best I can do on the evidence and that is why I am ordering it. Because I think the alternative might make it so much worse. It is all about alternatives, and in my Judgment, that is how we should proceed today.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 January 2025
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