Narwald & Narwald

[2021] FCCA 604

FEDERAL CIRCUIT COURT OF AUSTRALIA

Narwald & Narwald [2021] FCCA 604

File number(s):

ADC 5144 of 2020

Judgment of:

JUDGE C KELLY

Date of judgment:

25 March 2021

Catchwords:

FAMILY LAW – review of exercise of power by registrar

FAMILY LAW – interim parenting – expert evidence – best interests of children  

Legislation:

Family Law Act 1975 (Cth), ss 60CC, 61DA

Federal Circuit Court Act 2001 (Cth), s 104(2)

Federal Circuit Court Rules 2001, rr 1.06, 20.01-20.03

Cases cited:

Goode & Goode [2006] FamCA 1345

MRR v GR [2010] HCA 4

Number of paragraphs:

48

Date of hearing:

26 March 2021

Place:

Adelaide

Solicitor for the Applicant:

FJS Lawyers

Solicitor for the Respondent:

Andersons Solicitors

ORDERS

ADC 5144 of 2020

BETWEEN:

MS NARWALD

Applicant

AND:

MR NARWALD

Respondent

ORDER MADE BY:	JUDGE C KELLY
DATE OF ORDER:	26 MARCH 2021

THE COURT ORDERS THAT:

1.The Application for Review filed 23 December 2020 is granted.

2.Paragraphs 1 to 9 of the Orders of 18 December 2020 are discharged.

AND IT IS ORDERED UNTIL FURTHER ORDER:

3.The children X and Y live with each parent as specified in these Orders.

4.The children live with the father as follows:

(a)each alternate week from 4.30pm Wednesday until 4.30pm Saturday;

(b)each intervening week from 4.30pm Tuesday until 4.30pm Saturday; and

(c)at such other times as may be agreed between the parties including special occasions.

5.The children live with the mother as follows:

(a)each week from 4.30pm Saturday until 4.30pm Wednesday;

(b)each intervening week from 4.30pm Saturday until 4.30pm Tuesday; and

(c)at such other times as may be agreed between the parties including special occasions.

6.The Respondent father communicate with the children via Facetime or similar App each Monday at approximately 5.00pm.

7.The Applicant mother communicate with the children via Facetime or similar  App each Thursday at approximately 5.00pm.

8.Handover take place by the relevant parent collecting the children from daycare/kindergarten when appropriate.

9.All other handovers take place at a public venue to be agreed and confirmed by exchange of text message or in the alternative, inside the Suburb B Police Station.

10.The parties communicate by email in relation to the children unless in case of an emergency in which case contact by text message or telephone is permitted.

11.Each parent is restrained from removing the children from the State of South Australia save and except in circumstances where they are visiting family or holidaying interstate and only upon providing the other parent with at least 14 days notice.

12.That the parties be restrained and injunction be granted restraining then from:

(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;

(b)Abusing or threatening the other party on Facebook or any other social media and from discussing any issues raised in these proceedings on Facebook or any other social media;

(c)Allowing the said children to be exposed to violent or aggressive behaviour whilst in their care;

(d)Discussing these proceeding or the contents of any documents filed in or intended for use in these proceeding to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.

13.Each party keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.

14.The mother maintain regular contact and consultation with her treating GP/medical practitioner and psychologist and comply with all treatment requirements as may be prescribed or recommended by them.

15.The mother obtain an update report from her treating clinical psychologist Ms C, such report to be obtained on or before 30 May 2021, if possible.

16.The hearing before Senior Registrar Heuer on 9 April 2021 at 10.00am is vacated and adjourned to 7 June 2021 at 10.00am for mention before Senior Registrar Heuer.

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 under the pseudonym Narwald & Narwald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE C KELLY

INTRODUCTION

1. On 26 October 2020 the Applicant mother filed an Initiating Application seeking orders in relation to the parties’ children X, born in 2017 and Y, born in 2019.  The mother argued that the father had wrongfully retained X and Y and applied for an urgent listing date and the immediate return of the children to her care.

2. The mother’s Application was listed for hearing before Senior Registrar Heuer on 3 November 2020.  The Respondent father promptly filed answering documents on 2 November 2020.  His Affidavit raised serious concerns about the mother’s parenting capacity, allegations which she was unable to answer, given the timeframe.

3. In the course of the hearing on 3 November 2020, the parties undertook negotiations and consent orders were made to operate during the period of the adjournment.  Those orders provided for X and Y to live with the father and spend time with the mother on a day basis each Wednesday, Friday and Sunday.  The parties further agreed to the mother having regular Facetime interaction with the children each Monday and Thursday.  The mother was ordered to file an Affidavit in reply by 10 November 2020 and to undertake a psychiatric evaluation prior to the adjourned hearing date on 15 December 2020.  A range of uncontroversial parenting orders were made by consent, including various injunctive orders regarding the parties’ communication and parenting behaviour.

4. The parties were ordered to attend a s.11F Child Dispute Conference on 15 February 2021 at 9.30am and a s.69ZW order was directed to SA Police, to obtain any relevant documentation they may hold in relation to either of the parents or the children X and Y. 

5. The mother filed her responsive Affidavit on 10 November 2020, as ordered.  Both parties also filed additional Affidavit material as follows:

   4 December 2020        Affidavit of the mother’s lawyer, FJ Stevens, annexing the psychiatric report from Dr D dated 4 December 2020

   8 December 2020        Affidavit of the father’s solicitor, D Cutufia, annexing a range of subpoenaed material from “E Psychology”, a psychology practice in Brisbane, together with material in relation to the mother’s mental health history

   8 December 2020        Affidavit of Respondent father, filed in response to the mother’s Affidavit of 10 November 2020

   13 December 2020      Affidavit of Ms F, filed in support of the mother

   14 December 2020      Third Affidavit of the Applicant mother, updating her present circumstances, including her accommodation and support networks.

6. Various of these Affidavits were filed without leave and were the subject of submissions before Senior Registrar Heuer at the adjourned hearing on 15 December 2020 when the Senior Registrar made the following Orders:

   1.That the mother shall not be allowed to rely on the affidavits filed by the mother on 13 December 2020 and 14 December 2020 at the hearing of the interim application, save for the following as to the affidavit of 14 December 2020:

   paragraphs 3- 5 inclusive;

   paragraphs 14-17 inclusive;

   paragraph 19; and

   paragraphs 37-39 inclusive.

7. The father was then given leave to file a further Affidavit responsive to those specific paragraphs of the mother’s Affidavit that remained on file and the proceedings were adjourned to 18 December 2020 before Senior Registrar Heuer, for argument. 

8. The hearing proceeded on 18 December 2020 before Senior Registrar Heuer, who pronounced a range of interim parenting Orders. It is those Orders that are now the subject of the Application for Review before me.

9. Those Orders are set out in the Application for Review and I will not set them out in full here.  Suffice to say, the Senior Registrar continued certain of the parenting Orders from 3 November 2020, including Orders that X and Y continue to live in the primary care of the father and spend regular time in their mother’s care.  The Orders of 18 December included a progression to overnight time as follows:

   (a)each Sunday from 8.30am until the commencement of day care (or 4.30pm if a non day care day on Monday);

   (b)on 23 December 2020 from 8.30am until 4.30pm;

   (c)commencing Wednesday 30 December 2020, each Wednesday from 8.30am until the commencement of day care (or 4.30pm if a non-day care day); [the Court notes that this time presumably concludes on the Thursday]

   (d)each Friday from 8.30am until 4.30pm.

10. Senior Registrar Heuer also pronounced orders in relation to special arrangements for Christmas, handover arrangements and ongoing Facetime communication.  The parties were already directed to attend a s.11F Conference with a Family Consultant in February 2021 and were then directed to follow that process with a Family Dispute Resolution process through the Legal Services Commission of SA.  Her Honour then adjourned the proceedings to 9 April 2021 at 10.00am.

    THE LAW

11. Pursuant to s.104(2) this Court has the power to review a decision made by a Registrar.  When exercising the power to review a decision of a Registrar, the Court must consider the Application de novo.   Rules 20.01 – 20.03 of the Federal Circuit Court Rules 2001 (the Rules) set out the procedure for a Review Application.

12. The mother filed her Application for Review within seven (7) days, in accordance with Rule 20.01.  Rule 20.02 directs the Court to list the Application for hearing as soon as possible, and within 14 days, unless impracticable to do so.    The Application for Review was allocated into my docket but unfortunately the Christmas break and subsequent leave arrangements meant that I was unable to consider the Application for Review until my return from leave in late January 2021.  At that point it became clear that the Child Dispute Conference would be proceeding within the following fortnight. Rule 1.06 of the Rules permits the Court to dispense with any other Rule, where the interests of justice require it. Notwithstanding the terms of Rule 20.02, I concluded that the interests of justice required that the Application for Review await completion of the Child Dispute Conference Memorandum of 15 February 2021.

13. I also remind the parties that Division 12A of the Family Law Act directs the Court to actively manage parenting matters, in accordance with Principles set out in s69ZN(1). The volume of work within the Federal Circuit Court does not easily accommodate oral hearings and detailed submissions on every interim application, or every application for Review. Given the extensive amount of Affidavit filed in these proceedings and the very recently completed Child Dispute Conference Memorandum, I concluded that it was in the interests of justice that this matter proceed without oral submissions. 

    THE HEARING

14. The Application for Review proceeded as a hearing de novo before me.   I note Senior Registrar Heuer’s decision of 15 December 2020 in which she excluded specific portions of the mother’s Affidavit material.  That order was not reviewed and, accordingly, I have limited my consideration to the remaining Affidavit material on file, together with the Child Dispute Conference Memorandum dated 15 February 2021. 

15. In determining any parenting dispute, the best interests of the children remain the Court’s paramount consideration.  The Court must be guided by the objects and principles as set out in Part VII of the Family Law Act1975 (Cth) and, in particular, the considerations set out in s.60CC. The relevant pathway in relation to interim parenting proceedings has been clearly identified in previous Full Court authorities such as Goode & Goode[1], and confirmed in the High Court subsequently in MRR v GR[2].

    [1] Goode & Goode [2006] FamCA 1345

    [2] MRR & GR [2010] HCA 4

16. When making a parenting Order, s.61DA requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility unless the presumption is excluded or rebutted. In addition, the Court may consider that it is inappropriate to apply the presumption at an interim hearing. Given the complexity of the evidentiary matters before the Court, I consider this is one such matter where the presumption does not apply at this interim stage of the parenting proceedings.

    THE REVIEW APPLICATION

17. The mother seeks to review all of the Orders pronounced by the Senior Registrar on 18 December 2020.  In lieu of those Orders, the mother seeks orders as set out in her Application for Review as follows:

    1.That the parties have shared parental responsibilities for the children X and Y.

    2.The children live with the mother.

    3.The children spend time with the father:

    a.Each week from 4.30pm Thursday until 4.30pm Saturday

    b.At such other times as may be agreed.

18. The mother then proposed orders for the father to communicate with the children via Facetime each Tuesday and addressed a range of additional parenting Orders including handovers, parental communication and an order restraining the parties from changing the children’s place of residence from South Australia (save and except for short holidays).  Finally, she sought leave to file an updated report from her treating clinical psychologist, Ms G.

    BACKGROUND

19. The parties commenced their relationship in 2015 and were married in 2016.  They separated on 10 October 2020, but the circumstances of the separation are a matter of dispute.

20. Both parties were involved in the children’s parenting responsibilities but the mother took on the primary responsibility for caregiving, as the father worked full time and was occasionally required to travel interstate for work.  The father says his parenting responsibilities were substantially greater due to the mother’s mental health difficulties, but this is in dispute.

21. The father is employed as a Technician in the Employer H.  In December 2019 the family moved from Queensland to South Australia when the father was posted to the Employer J.  The mother commenced studying as a health care worker shortly after arriving in South Australia. The parties separated a few months later in October 2020.  The children X and Y have effectively remained in the father’s care since shortly after separation. 

22. The father is opposed to any substantial change in the parenting regime, arguing that the mother suffers from significant mental health issues and is unable to provide a safe and secure parenting environment for the children. 

    SECTION 60CC CONSIDERATIONS

23. I do not intend discussing every consideration within s.60CC(3). There is no evidence before me regarding the children’s views, given X is only three years old and Y not yet two years old.

24. While both parties raise allegations regarding family violence during the relationship, they also support the children maintaining a meaningful relationship with both parents and support the children spending substantial and significant time in the other parent’s care.  At this interim stage of proceedings, I conclude that the evidence regarding family violence should be viewed in a context of situational conflict, exacerbated by the tensions surrounding the family’s relocation to Adelaide, the impending separation and the mother’s fragile mental health.

25. These comments should not be taken to excuse or minimise violent or aggressive behaviour in any circumstances, but the extent to which I can address these allegations or make findings of fact in relation to any specific incident is limited.

26. I accept that both parents have also been actively involved in the children’s day to day care prior to separation; indeed they each claim the status of primary care-giver for X and Y in the months leading up to separation.  That is not a matter I need to determine today; it is sufficient to find that both parents are competent, capable parents and are devoted to their children’s welfare.  Both parents are able to meet their day to day parenting responsibilities, notwithstanding my discussion of the mother’s mental health concerns, set out below. Presently the parties’ co-parenting relationship has broken down, as discussed by the family consultant in the Memorandum to Court.  The Court always hopes that with the passage of time, the co‑parenting dynamic between the parties may get back on an even keel, but time will tell.

27. Both parents have demonstrated a proper attitude to the responsibilities of parenthood.  The mother is addressing her mental health and has re-established herself in suitable accommodation.  The father has been managing his parenting responsibilities around his professional obligations, with support from his employer and from extended family. While the parents are presently in high conflict over their children’s future parenting arrangements, this level of conflict may ease as they eventually re-establish a level of trust and mutual respect as parents.

    The mother’s mental health history

28. The mother’s mental health is the most significant factor in determining the appropriate parenting arrangements for X and Y.  The father argues that the mother is unwilling or unable to properly manage her mental health.  He argues that her associated anxiety and dysregulated behaviour places the children at risk of physical and emotional harm, if they are exposed to their mother’s aggressive and erratic behaviour.

29. The mother concedes that she has struggled with mental health issues in the past, but does not accept the father’s description of her past behaviour.  On the contrary, she says that she has always managed her mental health difficulties.  She sought appropriate mental health support in Queensland and again when arriving in Adelaide.  The mother says that she endeavoured to settle into their new life in Adelaide – she commenced studies in Adelaide and so on, but still found the transition very difficult. The mother confirmed that she began consulting with a psychologist in early 2020 due to anxiety issues, but also argues that the relationship tensions and the episodes of family violence also exacerbated her psychological stability leading up to the separation.  Since separation the mother has sought further medical assistance and her GP has prescribed Mirtazapine.[3]

    [3] Mother’s Affidavit filed 26 October 2020 at para.46

30. The father’s originating Affidavit filed 2 November 2020 paints a much more concerning picture regarding the mother’s presentation.  He says the mother has required psychiatric support since early in their relationship, dating back to 2016-2017.  He says that the mother’s mental health concerns have been longstanding and ranged from eating disorders through to anxiety, and included episodes of seriously disruptive and aggressive behaviour within the home.  The father says the mother’s mental health deteriorated significantly during and after each pregnancy, such that he became concerned for the safety of the children.[4]  Whilst he acknowledged the mother has sought appropriate medical treatment, the father says she still struggles to control the impact of her behaviour within the family. 

    [4] Father’s Affidavit filed 2 November 2020 at paras 7-18

31. The father agrees that the mother’s mental health deteriorated after their move to Adelaide.  He became increasingly concerned for the children’s physical safety in the mother’s unsupervised care.   The mother’s studies required her to attend on placement in City K during June-July 2020 and again in September-October 2020.  The father arranged leave from his employment to look after the children and provide ‘hands-on’ support for the family.  The tensions surrounding the mother’s placement in October 2020 led to the parties’ final separation.

1. The parties have different versions of the events surrounding their final separation on 10‑12 October 2020 and I will not endeavour to resolve those matters here.  The mother initially remained in the family home with the children and asked the father to move out, in an effort to lower the tension and distress within the family. 

2. The father acceded to the mother’s request.  By this stage the mother was feeling increasingly isolated in Adelaide and raised the possibility of returning to Queensland with the children.  The mother sought support from the Employer J Chaplaincy to obtain emergency accommodation and has annexed a letter of support from Chaplain L.[5]  The father also consulted with Employer J Chaplain regarding the mother’s mental health and his concerns about the children’s safety in her care.

   [5] Mother’s Affidavit filed 10 November 2020, Annexure -01

3. The mother acknowledges that the circumstances surrounding separation left her in a highly distressed state and that she sent a text message to a mutual friend, threatening suicide.  The mother addresses this in her Affidavit as follows:

   … I admit that I sent the message to Ms M which said that I was going to kill myself. I did not intend to do so.  I did not take any steps to do so.  I was feeling overwhelmed with the enormity of what was happening and did not really know what to do.  However, killing myself was never an option.  I composed myself and was planning what to make for dinner.[6]

   [6] Ibid at para.36

4. The police were notified and conducted a welfare check, but were satisfied that the children were safe in the mother’s care.  The father was not so easily reassured, given the mother’s past history.  He decided to collect the X and Y from childcare and then retained the children in his care, to assure their safety.

5. The mother was understandably upset by the father’s actions and demanded that he return the children to her care.  When he refused to do so, she became deeply distressed and collapsed, requiring medical attention.  The mother was transferred to the N Hospital on medical grounds and was assessed by a Mental Health Nurse and psychiatrist.  The mother was detained briefly but, following the psychiatric evaluation, she was discharged from hospital.

6. The mother has a long mental health history – that much is clear from the medical records subpoenaed from her health professionals in Queensland and South Australia.[7]  What is also clear from that material, however, is that the mother has recognised her mental health difficulties and has sought appropriate support across the years, including her ongoing consultation with her psychologist here in Adelaide, which commenced in June 2020.

   [7] Affidavit D Cutufia filed 8 December 2020, Annexures DC1 and DC2

7. The conclusion from the reports from Ms C and Dr D confirm that the mother has suffered a significant history of mental health difficulties arising from childhood issues.  I note that Ms C reported the mother describing the father as “incredibly supportive” but the move from Queensland to Adelaide in December 2019 during their early consultations, but nonetheless, the move was “a lonely time for her as she has no friends in Adelaide”.  This must have been a major stressor for the mother at the time.

8. As mentioned, Senior Registrar Heuer directed that the mother obtain an independent psychiatric evaluation and the expert report from Dr D was made available prior to the hearing on 18 December 2020.[8]  Dr D’s report is brief, but focussed.  It is useful to set out his final opinion in some detail as follows:

   OPINION

   Difficulties in Ms Narwald’s relationship with her own parents has resulted in Bulimia, which I understand as a response to her own anxieties when there is conflict.  She has her own ideal version of what she would like the father in these proceedings to be like and that he will not change into this image she experiences as unsupportive.  Her ability to tolerate the feelings of distress which come from normal day-to-day life activities, particularly as a mother of young children, is poor.  In the past, as she became aware of agitation, she would vomit and relieve the distress.  With therapy, there has been less vomiting and a greater awareness of the distressing emotions.  Therapy has not been completely successful because she still has episodes in which she feels very agitated, and at such times, reported expression of her distress through text messages.  She reports that such expression enables her to vent and improves her emotional state.  This is consistent with the nature of coping that is frequently seen in people with Bulimia.

   As often occurs post-separation, there appears to have been an intensification of the relationship dynamic that was present (and dysfunctional) prior to the separation.  I would presume the father sees himself as helpful and understanding, whereas she does not see him as understanding.  When he attempts to assert his own perspective, this is experienced by Ms Narwald as him being controlling.  This does not exclude that there may be actions by both parties that are themselves hostile or controlling, which is a matter of evidence.

   Ms Narwald appears to be gradually becoming more independent, as demonstrated by her ability to live separately, without the support of emergency accommodation.  Whilst her problems are of a long-term nature, she has demonstrated capacities in the past, such as undertaking academic studies and the care of her children.  It appears from her history that there have been times when she has felt overwhelmed and has temporarily acted inappropriately, although it didn’t appear that such actions have put the children at risk.  [my emphasis]  I also point out that she is still a relatively young women.

   She appears to be addressing her Bulimia appropriately, by both taking medication and undertaking psychological treatment.  There was past history of being so overwhelmed with anger that she took pills and alcohol, which required assessment in hospital, although at the time she said she wasn’t trying to kill herself.  Her expressions of dangerous behaviour are simply that – expressions of distress.  There was no psychosis or drug abuse.  I believe she would be safe to care for her children in an unsupervised manner.  I recommend that she continue with her current treatments. [my emphasis]

   [8] Affidavit F J Stevens filed 4 December 2012, Annexure FJS1, Psychiatric report dated 4 December 2020

9. Dr D concluded that the mother did not present with any psychosis or drug abuse and significantly, he concluded, as set out above, that she would be safe to care for her children in an unsupervised manner.

10. The mother has been caring for X and Y overnight and unsupervised for the past three months.  In the course of the s.11F Conference the father did not raise any concerns about the present care regime – indeed, he noted that the “…children are managing well with the current arrangements…”[9]

    [9] Child Dispute Conference Memorandum 15 February 2021, para 8

    Child Dispute Conference Memorandum 15 February 2021

11. The father continues to hold significant concerns regarding the mother’s mental health, which is understandable, given the longstanding nature of her mental health struggles.  Importantly however, the father also acknowledges that the mother is “a wonderful parent” when in a “good frame of mind”, but expressed concern regarding a lack of consistency exhibited by her.[10]

    [10] Child Dispute Conference Memorandum, para.17

12. In the course of the session, the father proposed that he have sole parental responsibility for the children and that they continue to live in his primary care but indicated that he would like to move towards a more equal shared care arrangement in the future, dependent upon the stability of the mother’s mental health over time.[11]

    [11] Ibid, para. 19

13. The mother proposed that she resume her role as primary caregiver but acknowledged that X and Y needed to maintain a meaningful relationship with their father and to spend substantial time with him, as well.

    DETERMINATION

14. Having considered the evidence before me within the context of the relevant s.60CC factors, particularly the evidence from the mother’s psychologist and Dr D, I conclude that it is in the children’s best interests that they spend more substantially more time living in the mother’s care. My conclusion in that regard is strengthened by the s.11F Conference Memorandum, which focussed on the need for X and Y to have regular and consistent living arrangements with both parents. The Family Consultant noted the difficulties for children as they navigate multiple moves between their parent’s homes, which has certainly been the experience for these two children over the past four months.

15. Presently X and Y transition between their parents’ care each Sunday, each Monday (following an overnight stay with their mother), each Wednesday, probably each Thursday (if I interpret the orders correctly) and each Friday.  We now have the situation where the mother’s mental health has remained stable for some months, despite the stress and anxiety surrounding these proceedings.  Reducing the number of handovers is, of itself, a child-focussed outcome, but added to that, I conclude that X and Y will benefit from more extensive overnight time in their mother’s care.  The orders I now pronounce will allow the children to live equally with each parent and t have a settled block of time in each parent’s care, including week day and weekend days.  Importantly, these orders will reduce the number of handovers that X and Y are required to manage each week.

16. I will continue orders in relation to handover arrangements and co-parenting communication, together with the earlier injunctive orders made by consent between the parties on November 2020.  These orders act to restrain the parties’ behaviour and ensure they do not expose the children to any hostility or controversy, whether overt or otherwise.

17. I conclude that it is appropriate to discharge the parenting Orders pronounced by Senior Registrar Heuer and now make interim orders as published at the commencement of these Reasons.  I am satisfied these interim orders are in the best interests of the children, at this stage of the proceedings.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge C Kelly.

Associate:

Dated:       26 March 2021