FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McDonald & McDonald [2022] FedCFamC1F 367
File number(s): SYC 7594 of 2013 Judgment of: ALTOBELLI J Date of judgment: 27 May 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Application by the father alleging six contraventions – Where complexity arises from the children being diagnosed with Autism Spectrum Disorder – Where Court is satisfied on the balance of probabilities that five of the contraventions are established – Finding that the mother hindered and prevented the operation of the orders pursuant to s 65N of the Family Law Act 1975 (Cth) – Where the mother failed to establish reasonable excuse – Where the mother is sanctioned under Subdivision F of Division 13A Part VII because the mother has previously been sanctioned – Where a bond of two years is imposed upon the mother – Where the bond requires the mother to address her anxiety concerning spend time arrangements with the father – Where parties seek variation of the operative orders pursuant to s 70NBA – Where Court varies the operative interim orders for supervised time to facilitate the spend time arrangements between the father and the children. Legislation: Family Law Act 1975 (Cth) ss 10B, 60CC, 65N, 70NAC, 70NAE, 70NAF, 70NBA, 70NFA, 70NFB, 70NFE
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Cases cited: Childers & Lee (2008) FLC 93–356; [2008] FamCAFC 5
Mitty & Mitty [2012] FamCA 329
Seaward & MacDuff [2011] FamCA 1041
Stevenson v Hughes (1993) FLC 92–363; [1993] FamCA 14
Division: Division 1 First Instance Number of paragraphs: 125 Date of last submission/s: 3 December 2021 Date of hearing: 6, 24 May 2021, 12, 22, 26 November 2021 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 7594 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MCDONALD
Applicant
AND: MR MCDONALD
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
27 MAY 2022
THE COURT ORDERS THAT:
1.The Court finds that the Respondent without reasonable excuse contravened:
(a)Orders 4(b) and 11 made on 31 August 2018 on 21 September 2019;
(b)Orders 4(b) and 11 made on 31 August 2018 on 14 December 2019;
(c)Orders 4(c) and 11 made on 31 August 2018 on 4, 5, and 6 October 2019;
(d)Orders 4(d) and 11 made on 31 August 2018 on 24 January 2020; and
(e)Orders 4(e) and 11 made on 31 August 2018 on 7 February 2020
pursuant to subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth).
2.The Respondent shall forthwith enter into a good behaviour bond for the said contraventions in Order 1 upon the following conditions:
(a)The bond shall be without surety or security;
(b)To be of good behaviour for the duration of the bond, which shall include:
(i)compliance with all orders made between the parties under the
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CaseChat Overview and Summary
The case of McDonald & McDonald before Judge Boyle involved a dispute between parents regarding the care and custody of their children, who had been diagnosed with Autism Spectrum Disorder Level 1. The father sought an increase in his custodial time, while the mother resisted significant changes. The legal issues before the court included determining the appropriate custodial arrangements for the children, considering their special needs and the parents' ability to communicate and cooperate. Additionally, the court had to assess the parents' parenting skills and whether there was a need for protection from abuse, neglect, or family violence.
Judge Boyle carefully considered the evidence presented, including expert opinions, the parents' ability to work together, and the children's progress and needs. The court highlighted the importance of a steady progression in the children's time with their father, noting the significant development that the children were now able to transition into his care through a support service. Despite the parents' difficulties in communicating and cooperating, the court decided that sole parental responsibility should be vested in the father. This decision was made to ensure that the children's relationship with their father and paternal family could develop in a manageable way, avoiding further litigation that would not benefit the children.
The final orders provided for a gradual increase in the father's custodial time, including overnight stays and holiday time, tailored to accommodate the children's needs and the mother's concerns. The court also noted the need for the father to develop skills to manage the children's behaviour and to engage with an occupational therapist. These orders aimed to safeguard the children's development and well-being, while encouraging the parents to focus on the children's needs rather than their own disputes.
Judge Boyle carefully considered the evidence presented, including expert opinions, the parents' ability to work together, and the children's progress and needs. The court highlighted the importance of a steady progression in the children's time with their father, noting the significant development that the children were now able to transition into his care through a support service. Despite the parents' difficulties in communicating and cooperating, the court decided that sole parental responsibility should be vested in the father. This decision was made to ensure that the children's relationship with their father and paternal family could develop in a manageable way, avoiding further litigation that would not benefit the children.
The final orders provided for a gradual increase in the father's custodial time, including overnight stays and holiday time, tailored to accommodate the children's needs and the mother's concerns. The court also noted the need for the father to develop skills to manage the children's behaviour and to engage with an occupational therapist. These orders aimed to safeguard the children's development and well-being, while encouraging the parents to focus on the children's needs rather than their own disputes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For present purposes, her Honour made a number of significant findings, as follows:(a)At [41], that the children have spent time with the father since the parents separated in April 2013 and were now able to transition happily into his care through the C. Her Honour referred to this as a “significant development” as the children had previously experienced difficulty in coping with transitions.(b)At [43], her Honour found that the children are not in need of protection from abuse, neglect or family violence with either parent.(c)At [48], her Honour noted that the mother’s concerns about the father’s parenting skills manifested her lack of trust in him. The mother had been relying on various comments made by the children following their time with the father, in support of her concerns, “notwithstanding that these are five year olds with ASD and there is no suggestion that they are reliable reporters of information.”(d)At [51], her Honour noted the difficulty of the parents working together for the children’s benefit, and, in particular, the father’s inability to recognise when opportunities to build a cooperative parental relationship are offered. The mother, in turn, was concerned about the father’s motives when opportunities for him to gain skills and assistance were rejected for reasons that were not made clear.(e)Her Honour’s possible exasperation with the parents is hinted at in [55] where she found that the use of a communication book had not assisted the parties’ relationship, but became a source of frustration for both. Accordingly, her Honour did not propose continuing any requirement for the use of a communication book.(f)At [61], her Honour found that the children had not yet spent a night away from the mother.(g)At [62], her Honour observed the abundance of evidence about the children’s difficulties in managing change. Her Honour also observed that, while it took considerable time for them to settle into changeovers through C Services, this had been achieved and both parents agreed that it was working for the children now.(h)At [71], her Honour foreshadowed orders intended to provide for the father’s time to extend to overnight in a way manageable for the children. Her Honour referred to the evidence of Dr G which suggested there was a good relationship between the father and children to build on. Her Honour recognised that the mother would be anxious about changing arrangements for the children, but noted that the pace of change was designed to accommodate those needs.(i)At [75], her Honour found that the mother unilaterally suspended the father’s time with the children on 21 April 2017. The children did not spend time with the father for two months. Her Honour noted that the mother should not have suspended the father’s time in the manner in which she did.(j)At [83], her Honour found that Ms H, a psychologist who had been working closely with the children, had seen a significant improvement in the children’s behaviour over the course of her involvement.(k)At [85] and [86], her Honour expressed concerns that the evidence suggested the father had not developed a real insight into the issues confronting the children, and that the father needed to develop skills to manage their behaviour.(l)At [87], her Honour foreshadowed orders that would require the father to engage with an occupational therapist when the children are with him. As it turns out, that did not occur.(m)At [90], in considering s 60CC(3)(j), her Honour stated, “I do not find that family violence is a feature of the matter.”(n)At [94], her Honour stated: It is difficult to forecast how the children will progress in this matter, and what may work for them in terms of time arrangements in the future. The orders I propose making will ensure a steady progression of time with their father, which can involve their extended paternal family through their father. To do otherwise would invite further litigation in this matter. This would be unlikely to assist the parties in their communication about the children, nor assist them in focusing on the children’s needs.(o)At [97], her Honour found that the parents are unable to communicate effectively, and that a lack of trust permeates their relationship. She noted the previous orders with respect to family therapy had proved ineffective. This was in the context of deciding that an order for sole parental responsibility should be made.(p)Finally, at [107], her Honour stated:These orders are intended to provide arrangements that safeguard the children developing their relationship with their father, and through him their paternal family. The time arrangements will progress to overnight time, and holiday time in a way that is manageable for the children and the mother.THE EVIDENCE
Decision
Reasons for decision
The father represented himself in this case, and the mother was represented by an experienced solicitor and family law counsel.THE REASONS FOR JUDGMENT OF JUDGE BOYLE, 31 AUGUST 2018 The reasons for judgment of her Honour were tendered in the mother’s case and became exhibit R12. The reasons provide important background, and her Honour’s findings as to certain matters become an important benchmark in this case. Her Honour explained that about one month before the commencement of the 2016 hearing, the children, then aged five, were diagnosed with Autism Spectrum Disorder Level 1 (“ASD”). This was a significant development at the time. In particular, the single joint expert, Dr F, was unable to recommend when the children should move to overnight time with the father, as this depended on the progress of the children’s therapeutic intervention. Thus, the 2016 orders provided for weekly time with the father to become unsupervised, and to move from four to six hours. Her Honour noted that there was a longstanding issue about the parents’ ability to communicate about the children’s needs. While family therapy was ordered in 2016, it did not appear to have succeeded by 2018. By the time of the adjourned hearing that commenced on 19 April 2018, the father was seeking orders for overnight time, eventually progressing to substantial and significant time. Significantly, the mother proposed orders that provided for the father’s time to become unsupervised, and to progress to overnight time during the school term by 2020, but overnight time during school holidays as early as Term 1 2019. For present purposes, her Honour made a number of significant findings, as follows:(a)At [41], that the children have spent time with the father since the parents separated in April 2013 and were now able to transition happily into his care through the C. Her Honour referred to this as a “significant development” as the children had previously experienced difficulty in coping with transitions.(b)At [43], her Honour found that the children are not in need of protection from abuse, neglect or family violence with either parent.(c)At [48], her Honour noted that the mother’s concerns about the father’s parenting skills manifested her lack of trust in him. The mother had been relying on various comments made by the children following their time with the father, in support of her concerns, “notwithstanding that these are five year olds with ASD and there is no suggestion that they are reliable reporters of information.”(d)At [51], her Honour noted the difficulty of the parents working together for the children’s benefit, and, in particular, the father’s inability to recognise when opportunities to build a cooperative parental relationship are offered. The mother, in turn, was concerned about the father’s motives when opportunities for him to gain skills and assistance were rejected for reasons that were not made clear.(e)Her Honour’s possible exasperation with the parents is hinted at in [55] where she found that the use of a communication book had not assisted the parties’ relationship, but became a source of frustration for both. Accordingly, her Honour did not propose continuing any requirement for the use of a communication book.(f)At [61], her Honour found that the children had not yet spent a night away from the mother.(g)At [62], her Honour observed the abundance of evidence about the children’s difficulties in managing change. Her Honour also observed that, while it took considerable time for them to settle into changeovers through C Services, this had been achieved and both parents agreed that it was working for the children now.(h)At [71], her Honour foreshadowed orders intended to provide for the father’s time to extend to overnight in a way manageable for the children. Her Honour referred to the evidence of Dr G which suggested there was a good relationship between the father and children to build on. Her Honour recognised that the mother would be anxious about changing arrangements for the children, but noted that the pace of change was designed to accommodate those needs.(i)At [75], her Honour found that the mother unilaterally suspended the father’s time with the children on 21 April 2017. The children did not spend time with the father for two months. Her Honour noted that the mother should not have suspended the father’s time in the manner in which she did.(j)At [83], her Honour found that Ms H, a psychologist who had been working closely with the children, had seen a significant improvement in the children’s behaviour over the course of her involvement.(k)At [85] and [86], her Honour expressed concerns that the evidence suggested the father had not developed a real insight into the issues confronting the children, and that the father needed to develop skills to manage their behaviour.(l)At [87], her Honour foreshadowed orders that would require the father to engage with an occupational therapist when the children are with him. As it turns out, that did not occur.(m)At [90], in considering s 60CC(3)(j), her Honour stated, “I do not find that family violence is a feature of the matter.”(n)At [94], her Honour stated: It is difficult to forecast how the children will progress in this matter, and what may work for them in terms of time arrangements in the future. The orders I propose making will ensure a steady progression of time with their father, which can involve their extended paternal family through their father. To do otherwise would invite further litigation in this matter. This would be unlikely to assist the parties in their communication about the children, nor assist them in focusing on the children’s needs.(o)At [97], her Honour found that the parents are unable to communicate effectively, and that a lack of trust permeates their relationship. She noted the previous orders with respect to family therapy had proved ineffective. This was in the context of deciding that an order for sole parental responsibility should be made.(p)Finally, at [107], her Honour stated:These orders are intended to provide arrangements that safeguard the children developing their relationship with their father, and through him their paternal family. The time arrangements will progress to overnight time, and holiday time in a way that is manageable for the children and the mother.THE EVIDENCE
Ratio Decidendi
Legal Principle Established
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