Needham & Shao
[2022] FedCFamC1F 914
•11 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Needham & Shao [2022] FedCFamC1F 914
File number(s): SYC 5643 of 2020 Judgment of: ALTOBELLI J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PARENTING – Interim application pending a part-heard final hearing – Spend time with arrangements – Where the Independent Children’s Lawyer and expert support an increase in time with the father – Where it is ordered time should not increase pending the part-heard final hearing – Conservative child-focused approach. Cases cited: Needham & Shao [2021] FamCA 576 Division: Division 1 First Instance Number of paragraphs: 28 Date of last submission/s: 21 October 2022 Date of hearing: 13 October 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Farrar Gesini Dunn Sydney The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
SYC 5643 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NEEDHAM
Applicant
AND: MS SHAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Orders 5 of the orders dated 6 August 2021 is discharged.
2.The Respondent mother facilitate a FaceTime call between X and the Applicant father each Wednesday between 5pm and 5.30pm, with the mother to instigate the call, guide and actively encourage X to participate.
3.All other interim applications in this matter are otherwise dismissed.
THE COURT NOTES THAT:
A.The matter remains listed for final hearing (part-heard) on 31 January 2022.
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 pseudonyms Needham & Shao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
This matter continues to be about X who is now three years old. The question for this Court is whether, and if so, how, the existing parenting orders relating to X should be changed pending the conclusion of the final hearing that is now listed for three days commencing on 31 January 2023. It is common ground that the judgment will not be immediately available after the conclusion of the final hearing given the complex issues raised in this case. Thus, the Court and the parties are very much aware of the reality that any change in the orders may cover a period of time that goes beyond 2 February 2023, and indeed, potentially well beyond that time.
The unfortunate reality for this Court is that if it were to deliver written reasons for judgment on the present application providing a more fulsome explanation of its decision on present indications and having regard to competing priorities, such judgment would not be available by 31 January 2023, and that is why the Court has adopted its present course of an abbreviated oral judgment.
The matter has a long history that is well known to the parties. Matters of background are set out in my reasons for judgment dated 6 August 2021, reported as Needham & Shao [2021] FamCA 576 (“my previous reasons for judgment”). Interim orders were made on that date which continue to apply. The only objective and independent expert evidence is that of Mr S, a clinical psychologist, dated 7 April 2021. Cross-examination of Mr S has commenced but not concluded.
It is trite but nonetheless important to observe that the present application is for interim orders.
The orders made on 6 August 2021 currently provide for X to live with his mother (“the mother”) and spend time with his father (“the father”) each weekend from 8am Saturday to 4pm Sunday. In these proceedings, the mother proposes that there be no change to the spend time arrangement until 22 September 2023. The father proposes an increase in time such that X spend time with him from 4pm Friday to 4pm Sunday for a period of 12 weeks and thereafter from 4pm Friday to 8am Monday. The Independent Children’s Lawyer also proposes an increase in time such that X spend time with the father on the first, second and third weekend in each four week period from 4pm Friday to 5pm Sunday and from 4pm Thursday to 5pm Friday in the fourth week. Otherwise, there are a number of additional important, but ancillary, issues.
For reasons that will be briefly explained, the Court will not make changes to the time that X currently spends with his father. On the evidence, this sustains a meaningful relationship between X and the father. The Court is satisfied that this meaningful relationship is neither threatened nor jeopardised by failing to increase time in the circumstances of this case. Indeed, the Court has concluded that there is a greater risk to X if the time is extended.
The father proposed a variation to the FaceTime orders, which are Orders 5 and 6 made on 6 August 2021. The effect of the orders is to reduce the frequency of FaceTime contact from Monday, Wednesday and Friday with the father, and Saturday with the mother, to FaceTime with the father on Wednesday only. This is supported by the Independent Children’s Lawyer. It is clear from the evidence that FaceTime communication is not working in the best interests of X, and it seems to be, regrettably, yet another opportunity for the parents to find an outlet for their antipathy towards each other. The father’s proposal will be adopted. The only caveat, however, will be that the mother’s Saturday FaceTime contact remains.
The Court proposes to make no further changes to the orders, and it will explain why.
In support of his case, the father relied on the following material:
(a)His affidavit filed 19 September 2022;
(b)Affidavit of Ms K filed 19 September 2022;
(c)Case outline filed 12 October 2022;
(d)Written submissions in reply filed 21 October 2022;
(e)His minute of proposed orders, marked as exhibit A1; and
(f)Single Expert Report of Mr S dated 7 April 2021.
In support of her case, the mother relied on the following material:
(a)Her affidavit filed 11 October 2022;
(b)Written submissions filed 20 October 2022; and
(c)Her minute of proposed orders, marked as exhibit R1.
In support of their case, the Independent Children’s Lawyer relied on the following material:
(a)Affidavit of the mother filed 13 January 2022;
(b)Case outline filed 11 October 2022; and
(c)Their minute of proposed orders, marked as exhibit ICL1.
I note that the applicable law continues to be as set out at [15]–[23] of my previous reasons for judgment.
The sad reality for X is that nothing has changed since my previous reasons for judgment. Everything that Mr S observed or prognosticated about the parents is reflected in the evidence that is currently before the Court. The parents continue to behave in the same self-centred fashion observed by Mr S, both in his report and in cross-examination, in terms of their relationship with each other.
They seem totally oblivious to the reality that their behaviour is being observed, recorded and critically scrutinised in the context of this litigation. Were it not for this Court’s extensive experience, it might even be surprised that two highly intelligent and articulate parents who have had pointed out to them by an independent expert that one of their behaviour patterns involves an “external locus of control” (i.e. that one or other of the parents justify their actions and reactions on the basis of how they are perceived to have been treated by the other such that there is never actual ownership of their own behaviour) continue to behave in precisely the same way. They do so even though an independent expert, and other professionals (possibly including the legal professionals in this case) have pointed out to them the adverse impacts of their behaviour on the child they love.
The evidence of both parents in their affidavits is replete with examples of behaviour that is driven by the fear and anxiety that was identified by Mr S. In cross-examination, Mr S was able to articulate both the benefits to X of consolidating his relationship with the father, and the challenges of doing so, given the extensive history of difficulties the parents have had in terms of implementing the spend time with arrangements in a child-focused fashion.
The Court’s impression of the cross-examination of Mr S was that he was pessimistic about the parents’ capacity to enter into a cooperative, flexible, inclusive and respectful child-centred parenting time arrangement. His pessimism is borne out by the evidence of the parents since he gave that evidence. In submissions made before this Court, the father focused on the expert’s evidence about the advantages of the benefits to X spending more time with the father whilst inadequately confronting the reality of the challenges of doing so on the facts of this case.
From the Court’s perspective, its greatest concern is how X is coping with his existing time with the father. The evidence of concern is found in the mother’s affidavit filed 11 October 2022 and in particular, at paragraphs 8–17. The mother depicts a child who is not coping well with overnight time and she describes long periods of recovery from the weekly visit. She sets out examples of regression, including what the Court would describe as lack of confidence, increased anxiousness and irritability, regression in language and sleeping patterns, grinding of teeth and the use of a pacifier. This evidence suggests, at least on a prima facie level, that X is not coping well at the moment. Of course, the Court does not really know whether X’s behaviour is directly attributable to the current contact arrangement or whether it is attributable to the high level of conflict to which the parents seem to obliviously expose him, or, indeed, to something else. From the Court’s perspective, causation is not something that can be determined on an interim basis. Its concern is that further change might exacerbate the regression that X is experiencing. Why would the Court take this risk when the final hearing is only a few months away?
Senior counsel for the husband appropriately submitted that the mother’s evidence in this regard is untested. It was submitted that the Court should be very cautious in relation to the weight to be placed on the mother’s evidence, given the absence of corroborative evidence. These are interim proceedings, and so far, this Court has assiduously sought to avoid being drawn into findings of fact, even though it has had the benefit of observing both parents under cross-examination. This is because the matter remains part-heard and it is highly likely that both parents will need to give further evidence. The mother’s evidence in this regard cannot be ignored as it goes to the central issue of the risk to X of making further orders which extend his time with the father.
The Court is well aware of the recommendations made by the expert in relation to extending X’s time with the father, but the expert is not appraised of the evidence before the Court about what seems to be his regressive behaviour. A conservative child-focused approach is required. There will be no change to X’s time with his father. The risk is too great. Regrettably, he has not been blessed with parents who have manifested a capacity to unequivocally focus on what is best for him and seem to have a very limited capacity to assimilate the expert evidence that they have had the benefit of. All the benefits of extra time with the father are offset by the risks associated with this.
Both of the parents raised issues other than time. The father proposed an order that each parent be at liberty to attend a specialist appointment on the basis that the other attend electronically. The Court is not satisfied that the parties have the capacity to implement such an arrangement, which depends on a level of communication they do not have.
The father wanted X to commence at pre-school but does so on scant evidence and against the opposition of the mother. It might mitigate some of the problems at changeover, but equally, it might raise other issues that cannot be dealt with in the present application.
Both the parents and the Independent Children’s Lawyer want to change how changeover is effected. There is no doubt that changeover continues to be opportunities for both of X’s parents to behave in a less than ideal fashion towards each other and in his presence, seemingly totally oblivious to the impact on him.
Supervision, as proposed by the Independent Children’s Lawyer, would be the best solution but the father says he cannot afford it and the mother does not see the need for it so the Court will not make the order. As unsatisfactory as the existing arrangements are, at least they are known to X. The Court has little confidence in the ability of these parents to successfully implement another changeover arrangement which will be less detrimental to X than the existing one.
The mother proposes an order that if the father is unable to personally care for X for a period of more than two hours, he is to notify her of the opportunity and offer her the opportunity to care for X. In the Court’s experience, such a proposal might only work in a low-conflict case and would not have much prospects of success in this case. It is a proposal that is manifestly impractical.
The Independent Children’s Lawyer proposed orders relating to medical emergencies and communication, but it is, with the greatest of respect, another impractical proposal. It requires a level of trust and capacity to communicate that these parents do not have. The Independent Children’s Lawyer’s proposal for an order for exchange of information is sensible, but regrettably, on the evidence before the Court, it would simply give these parents another issue that would cause conflict between them.
The mother sought a number of restraints in her proposed Orders 7, 8 and 9, none of which is supported by the evidence. The mother proposed orders in relation to passports. In the circumstances of this case, there is no cogent reason for dealing with this issue on an interim basis at this stage. The mother proposed an order that the father attend an anger management course. The Court observes that the parents would both benefit from such a course, but, in all likelihood, neither parent has the insight to see the benefit of this to themselves individually. The mother sought a number of financial orders, none of which were listed before the Court for determination and are therefore not made.
The mother sought to discharge Orders 10 to 15 made on 6 August 2021, dealing with her immigration status. Even if the mother has done everything that she says she is required to do, the fact is that these orders contain ongoing obligations, and thus, it is not appropriate to discharge them.
Subject to the variation that I identified in relation to the FaceTime orders, all other interim applications before the Court are dismissed, and the matter is stood over for hearing to 31 January 2023.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 11 November 2022