Nygaard & Due
[2023] FedCFamC1F 503
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nygaard & Due [2023] FedCFamC1F 503
File number(s): TVC 1366 of 2021 Judgment of: BAUMANN J Date of judgment: 13 February 2023 Catchwords: FAMILY LAW – PARENTING – Best interests decision – Where there is no forensic or other corroborative evidence to support the allegations made by the eldest child of sexual abuse – Mother to have sole parental responsibility of the eldest child –Father to have sole parental responsibility for the second child – Where the parents have equal shared responsibility for the youngest child – Final orders made by consent Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 13 February 2023 Place: Townsville Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: O’Sullivans Law Firm Counsel for the Respondent: Mrs Bassano Solicitor for the Respondent: MK Family Law – Townsville Counsel for the Independent Children’s Lawyer: Mr Fellows Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
TVC 1366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NYGAARD
Applicant
AND: MR DUE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
13 FEBRUARY 2023
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous parenting Orders made and Undertakings given in these proceedings be discharged.
X
2.That the mother have sole parental responsibility for the child, X born 2007. The mother is to inform the father in writing of any long term decisions she makes for X within seven (7) days of making such decision.
3.That X live with the mother.
4.That the time between X and the father be at the direction of X.
Y
5.That the father have sole parental responsibility for the child, Y born 2009. The father is to inform the mother in writing of any long term decisions he makes for Y within seven (7) days of making such decision.
6.That Y live with the father.
7.That the time between Y and the mother be at the direction of Y.
Z
8.That the mother and father have equal shared parental responsibility for all long-term issues effecting the child, Z born 2013.
9.That until Order 9(a)(vi) has been achieved, Z live with the mother and spend time with the father as follows:
(a)From the date of these Orders, with such time commencing as nominated by the father being 18 and 19 February 2023:
(i)For two (2) occasions from 9.00am to 6.00pm each alternate Saturday and Sunday;
(ii)Upon the completion of the time provided for in Order 9(a)(i) above, on two (2) occasions from 9.00am Saturday until 6.00pm Sunday each alternate weekend;
(iii)Upon the completion of the time provided for in Order 9(a)(ii) above, on four (4) occasions from the conclusion of school on a Friday (or 3.00pm Friday if a non-school day) until the commencement of school on a Monday or if a public holiday or pupil free day/non-school day, before school on a Tuesday or 9.00am and each alternate weekend thereafter;
(iv)Upon the completion of the time provided for in Order 9(a)(iii) above, on four (4) occasions from the conclusion of school Friday until the commencement of school Wednesday;
(v)Upon the completion of the time provided for in Order 9(a)(iv) above, on four (4) occasions from the conclusion of school Friday until the commencement of school Thursday;
(vi)Upon the completion of the time provided for in Order 9(a)(v) above, Z will live in a week about arrangement between the mother and father, with the changeover time being Friday at 3.00pm until before school the following Friday or 9.00am if a non-school day, with such time is to commence upon the completion of Order 9(a)(v).
10.That in the event the mother cancels any period of time with the father pursuant to Order 9, Z’s time with the father is to recommence in accordance with schedule provided for in Order 9 as if the time had occurred.
Christmas block time
11.That for the Christmas school holiday period (which is determined to be from the Friday concluding term four (4) until the Friday immediately before term one (1) commences the following year), Z shall spend time with the parents as follows:
(a)In 2023 and each alternate year thereafter:
(i)with the mother from the conclusion of school in term four (4) until 9.00am on 29 December; and
(ii)with the father from 9.00am on 29 December until the first Friday immediately before the commencement of term one (1) the following year.
(b)In 2024 and each alternate year thereafter:
(i)with the father from the conclusion of school in term four (4) until 9.00am on 29 December; and
(ii)with the mother from 9.00am on 29 December until the first Friday immediately before the commencement of term one (1) the following year.
(c)The week about arrangement shall recommence from the Friday immediately before term one (1) commencement.
Changeovers
12.That changeovers shall occur at the child/children’s school during the school term. On non-school days, changeovers shall occur at McDonald’s Restaurant at Suburb B.
Mother’s Day/Father’s Day
13.That in the event that Z is staying with the father on Mother’s Day, Z shall spend time with the mother as agreed between the parents, but failing agreement from 9.00am until 4.00pm.
14.That in the event that Z is staying with the mother on Father’s Day, Z shall spend time with the father as agreed between the parents, but failing agreement from 9.00am until 4.00pm.
Children’s birthday
15.That on Z’s birthday she shall spend time with the parent she is not living with, overnight if such birthday falls on a school day with such time to be as agreed between the parents but failing agreement between the hours of 3.00pm until the commencement of school the following day and if a non-school day, for a period of six (6) hours with such times to be as agreed between the parents but failing agreement from 1.00pm until 7.00pm.
16.That on Y and X’s birthday, Z shall spend time with the birthday child if they are not already spending time together, for an overnight if such birthday falls on a school day with such time to be as agreed between the parents but failing agreement between the hours of 3.00pm until the commencement of school the following day and if a non-school day, for a period of six (6) hours with such times to be as agreed between the parents but failing agreement from 1.00pm until 7.00pm.
Communication and sharing of information
17.That the parents notify each other parent in writing of any change in their contact details (residential, email and phone) within forty eight (48) hours of same changing.
18.That the parents shall communicate regarding X, Y and/or Z via Talking Parents or such other parenting app as may be agreed between the parents, except in the case of an emergency, in which case they shall communicate via text.
19.That neither parent will make a non-urgent medical appointment for Z without having firstly consulted with the other parent about the need for an appointment.
20.That the parent with whom any of the children are with at the time is to contact the other parent immediately if a child becomes seriously ill, hospitalised or is involved in an accident and will inform the other parent of the name and address of any medical practitioner or treatment facility.
Restraints and injunctions
21.That the mother and father are restrained from discussing these Orders, court proceedings and any sexual abuse allegations, domestic violence allegations which were raised in these proceedings in the presence of or hearing of any of the children specifically X, Y and/or Z.
22.That the parents are to immediately remove X, Y and/or Z from the hearing and vicinity of any person who is discussing these Orders, proceedings, sexual abuse allegations, domestic violence allegations which were raised in these proceedings.
23.That the mother is restrained from, and an injunction hereby issues restraining her from informing or inferring that X has been sexually assaulted and/or raped by the father.
24.That the parents not denigrate each other or members of the other parent’s family to the child or within the child’s hearing.
25.That the parents not attend Y or Z’s school while the children are living with the other parent, unless the school requests the parent to do so or it is an event that parents are usually invited to attend.
26.That neither parent involve Z in any additional extra-curricular activity (not already enrolled in) without having first consulted with the other parent and obtained their written consent.
27.That each parent ensure Z attends all extra-curricular activities agreed in accordance with Order 26.
28.That both parents are entitled to receive copies of all reports, bulletins, progress reports, photographs, certificates, awards and information from each of the children’s schools and these Orders act as authority to the children’s school/s to provide such information to each parent (at the parent’s expense) and always at the discretion of such education facility.
29.That both parents are entitled to receive information about Z’s medical condition, treatment and copies of medical records and reports and these Orders act as authority to Z’s medical practitioners (including counsellors and psychologists) to provide such information to each parent (at the parent's expense) and always at the discretion of such medical or allied professional service.
30.That Z remain engaged with Ms C at D Services for as long as recommended by Ms C, and the mother and father are to do all acts and things to follow Ms C’s recommendations and directions for such therapy.
31.That the family report writer and the Independent Children’s Lawyer explain these Orders to each of the children as soon as possible and during such explanation the children are to be given privacy and the mother and father are restrained from asking what was said in such discussion.
THE COURT ORDERS ON A FINAL BASIS:
32.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That accepting a thorough investigation by Police (and no charges being laid against the father) was undertaken of allegations of historical sexual abuse in 2013 against the child X, the mother has informed the Court that she no longer presses for a finding that the father presents as an unacceptable risk of harm to the children.
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 Nygaard & Due has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of three children, X, who is now fifteen, Y, who is thirteen, and Z, who is nine, separated in 2019. After entering into orders shortly thereafter that provided for the children, Z and Y, to have week about time, and X time with her father as per her wishes, the parties had hoped, no doubt, that that would be the end of litigation.
Although the Court is not required to make any findings in relation to allegations of historical sexual abuse said to have been asserted by X to her mother, and perhaps in some ways repeated to police in or around early 2022, it is said to have been abuse that occurred when she was about six years of age, around the birth of Z. Those allegations have clearly caused the family relationships in this case to be significant and, hopefully not, but possibly, irreparably damaged.
The second family report prepared by Family Consultant and Child Court Expert Ms E, was only released on 9 February 2023. The report provided some clear recommendations and the foundation for those recommendations. The parents have, it seems, with the benefit of their legal advisors, considered that report and the evidence, and have produced to me orders today which they say, on a final basis and with their consent, meet the best interests of all three children.
The Court is asked to make orders which require the two older siblings to live separate from each other; X with the mother, Y with the father, and to again seek to return Z to an equal time arrangement –a mere two and half years after final consent orders were first made. It reflects how easily family dysfunction can be created, and how the children ultimately suffer the consequences of their parents’ conflict. This has not been an easy case for the parents. I accept that X and Y have both demonstrated challenges to their mental health that has caused them to contemplate self-harm and even attempt it.
When the matter came before me and the final orders were presented to me, I raised my concern, having read the material overnight, that the mother still seemed to be pressing a finding against the father that he had, in or around 2013, sexually abused X. Not only is it suggested in the material from the mother that it was touching of a sexualised nature, but actually significant use of implements to penetrate the child.
The mother, through her Counsel, when asked to explain how her position has changed from that which was set out in her comments to the report writer and in her affidavit, are no doubt shaped by the legal advice she has received. She indicated (through Counsel) that she now accepts that the police investigated the matter and that there was insufficient evidence to prosecute the father. Perhaps because she does not wish X to believe that she is not believed, which is always the difficulty for a parent in these situations, she does not know and therefore cannot accept that it did not occur any more than it did occur.
Mr Fellows of Counsel, for the Independent Children’s Lawyer, explained, of course, as is clear, that there is no forensic or other corroborative evidence to support the allegations made by the child. I also take into account that, sadly, X is a child who has, in recent years, demonstrated fluctuating mental health. Some of her behaviour, from the material, including statements made by her sister, show a child very much finding it difficult to maintain a consistent pattern of behaviour; at times being exposed to drug use and mental health issues and, it seems, at least on one occasion engaging in social media publication of intimate photographs of herself.
There is nothing in the material that would suggest to me that the mother has ever supported or in any way promoted such behaviour. This young lady is at a high risk, and there is probably little that the mother can do other than to get her functioning well through an apprenticeship, which she apparently seeks to pursue, and to monitor her adult relationships in a way that keeps her safe.
Y voted with her feet, in a sense, and in mid-2022, in the midst of these new allegations and concerns, chose to live with the father. It is clear on the evidence that the father has formed a solid relationship with Ms F, and that Y feels safe and comfortable there. The mother had brought at least one recovery order in recent times to have Y returned to her care in accordance with earlier Orders. On one occasion, I dismissed the Application for the reasons given at the time. The final position now being adopted by the parents is that Y will be able to live with the father, who will have sole parental responsibility, and that she will chose the frequency and time she spends with her mother.
As a result of those two children’s final Orders, the attention quite properly moved to Z, who, at nine, having been born 2013, is at a much different developmental stage. It does not appear from the material to date that she has had the unfortunate challenges of either mental health or a medical condition, as does Y, and the other mental health issues that X must manage. She was used to having equal time for a period. The orders provide for that to graduate back to equal time over a period of about eight months.
I accept that that period of graduation is discretionary. I may have wished it to be a bit quicker, but I accept the parents are the ones who are going to have to make it work. As a result, I am prepared to accept that there is a strong prospect equal time will work for these parents for Z and that the child will also be comfortable with the return to this arrangement.
There is, for this family, the ongoing estrangement particularly between the siblings X and Y. The material is replete with statements they make about the other. But also, I identified a sense that each of them experiences a loss from the lack of relationship with the younger and/or older sibling. Z seems to be able to, at this stage, move quietly between households and ignore the perhaps negative views each older sibling has about the other parent they are estranged from at this time. The mother and father must do their best to try and moderate, in the mother’s case X’s views, and in the father’s case Y’s views, so that it does not poison or affect Z’s hope of having a good and meaningful relationship with each of her parents.
I think the parents have demonstrated enough in the material I have read to show that they are capable of working together for Z. In that light, in my view, they are also capable of adding some positive input into the long-term relationships, at least between Y and X, and I urge them to do so, but make no orders in that respect. Of course, once orders have been made on a final basis, the hope is that will bring any involvement of the Court in the parenting of these children to an end. But, ultimately, the only way that will be achieved is if the parents take on board what no doubt has been their legal advice, but also the comments made in the family report – some of which would have been stinging in respect of the parties – particularly the mother, to try to do better in the future, and try and ensure that Z, at least, does not befall the mental health challenges that her older siblings have got.
It is hard not to form at least a preliminary view that the mental health issues of X and Y were significantly impacted by the ongoing conflict in the marriage and relationship of the mother and father. Children’s behaviour is always contextual. In my view, we have far too many children in therapy in Australia, and far too few parents. It is their behaviour which is often the context for their children’s behaviour. However, there is, as Mr Fellows quite rightly indicates, something powerful about parents reaching agreements.
Although I do have at least a slight reservation that these parents, when the going gets tough, will be able to maintain the thoughts they have today in any of these agreements. I urge them to do so. They of course will not have the benefit of lawyers who have experience and who have helped them shape these orders.
Nonetheless, for the reasons given, and having read the family reports and the material of the parties, and building on the oral comments made by me this morning, I am satisfied that the orders which the parties have consented to are in the best interests of the children at this time, on that evidence, and I therefore make them.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2023
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