O'KEEFE & PASCOE

[2020] FamCA 274

FAMILY COURT OF AUSTRALIA

O'KEEFE & PASCOE [2020] FamCA 274

FAMILY LAW – CHILDREN – Previous final orders – previous change of arrangements on an interim basis – Amended final consent orders made – contested orders regarding location of time with the child – contested orders regarding school holiday time

Family Law Act 1975 (Cth)

APPLICANT: Mr O'Keefe

RESPONDENT: Ms Pascoe

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

FILE NUMBER: CAC 790 of 2015

DATE DELIVERED: 23 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Behrens

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

ORDERS

1. That all previous Orders be discharged.

2. That all outstanding Contravention Applications are dismissed.

3. That Mr O'Keefe (“the Father”) have sole parental responsibility for D, born … 2014.

4. That the Father shall consult with Ms Pascoe (“the Mother”) prior to making any long term decisions for D and notify her of any decisions in writing once they are made.

5. That D shall live with the Father.

6. That commencing from the date of these Orders, D shall spend time with her Mother as follows:

   (a)From the next available Sunday, and each alternate Sunday after, from 10:00am until 6:00pm;

   (b)If the child is at school, from the conclusion of school until 6:00pm each Tuesday and Friday;           

   (c)If the child is not in school, including during holidays, from 10:00am until 6:00pm each Tuesday and Friday.

7. Notation – there is no restriction on the Mother spending her time with D at the Mother’s home provided the Mother is otherwise compliant with the restraint on allowing D to come into contact with Mr Pascoe.

8. That the Father will facilitate facetime calls between the child and the Mother:

   (a)Each Sunday that the child is not spending time with the Mother at 6:00pm;

   (b)At any reasonable time as requested by the child; and

   (c)The Father is to initiate the calls for the purpose of this Order.

9. That notwithstanding any other Order, D’s time is amended for special occasions as follows:

   (a)On the Father’s day weekend, if D was to see her Mother, that time is to take place on the Saturday from 10:00am until 6:00pm; and

   (b)On Mother’s day, D will spend time with her Mother from 10:00am until 6:00pm.

10. That changeovers take place:

    (a)When the child is at school, with the Mother to collect the child from school; and

    (b)At all other times, at the P Town Cafe.

11. That the parties are restrained from consuming alcohol while the child is in their care, or allowing the child to come into contact with anyone who has consumed alcohol to excess.

12. That the Mother is restrained from bringing the child into contact with Mr Pascoe or Mr H.

13. That both parents be at liberty to attend any events that are held by, or at, D’s school to which parents are ordinarily invited.

14. That this Order act as an authority for both parents to access information to which parents are ordinarily entitled from the following organisations:

    (a)The child’s school or education providers, including tutors;

    (b)The child’s medical practitioners including specialists or mental health practitioners; and

    (c)Any extra-curricular activity providers.

15. That the parties agree to attend a further mediation in 2023.

16. Until the Mother determines that it is appropriate to recommence face to face time with D in the context of the current COVID-19 issues, the Mother’s time will take place by facetime or similar service at the following times:

    (a)       4:00pm on Tuesday and Friday;

    (b)       10:00am each alternate Sunday; and

    (c)       Any other times that the child wishes to contact the Mother.

17. The Mother’s determination in the previous order is in her sole discretion and does not require the agreement of the Father.

18. The Mother may have additional time with the child during the school holidays as follows:

    (a)       With 7 days’ notice being given to the Father in writing;

    (b)       For a block of no more than 3 nights;

    (c)       Once per ordinary holiday periods; and

    (d)       Twice during the Christmas holiday period;

    (e)In the event that the time during the Christmas school holiday period spans Christmas day this will not occur during consecutive Christmas holiday periods (unless there is written agreement to the contrary);

    (f)That the mother will provide a phone number for a family member she is visiting to the Father.

19. The time provided for in the above order does not require the agreement of the Father.

20. Notation - That the holiday time is to allow the Mother to facilitate the child seeing her extended family.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O'Keefe & Pascoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 790 of 2015

Mr O'Keefe

Applicant

And

Ms Pascoe

Respondent

REASONS FOR JUDGMENT

1. The parties to this matter are Mr O'Keefe (“the Father”) and Ms Pascoe (“the Mother”).  There is one child of the relationship, D, born in 2014. 

2. The context of this matter is that there was a Final Hearing and determination in May 2018.  The Final Orders provided for the Father having sole parental responsibility for D and for D to live with him.  The Orders, in general terms, also provided for D having time with her Mother each alternate weekend and for portions of the school holidays.

3. Since the making of those orders, there have been two Contravention Applications made by the Mother, brought about because the Father did not deliver D for time with her.

4. In response to the first Contravention Application filed 29 August 2018, compensatory time was ordered.

5. The Mother filed the second Contravention Application in May 2019.  The Father responded by alleging that he did not deliver D to the Mother on the basis that events had occurred which indicated that Mr Pascoe, the Mother’s husband, posed an unacceptable risk to D, both in terms of physical and sexual abuse.

6. In June 2019, orders were made for D to spend time with the Mother and her siblings provided that she is not brought into contact with Mr Pascoe.    

7. These events led to the Father filing an Initiating Application in June 2019 to re-open his case and for the matter to proceed to Final Hearing.

8. By the commencement of the Final Defended Hearing, the parties had resolved a large number of the disputed items by consent.  Significant amongst the consent terms were provisions for sole parental responsibility being with the Father, subject to consultation requirements, that D will live with her Father, that D will not be brought into contact with Mr Pascoe, and that D will spend frequent regular, although not overnight time with the Mother.

9. The agreed terms, arrived at with the assistance of the Independent Children’s Lawyer, reflect D’s best interests.  The provision for D to live with the Father, and his exercise of parental responsibility reflects the conclusions arrived at on the hearing of the matter in 2018.  The provision for frequent time with the Mother and siblings, although limited in a manner to provide for this to happen without contact with Mr Pascoe reflects the prominence of the primary considerations in this matter, being the need to protect D from harm and the importance of the benefits she receives from the relationship with her Mother and siblings.

10. A number of contested matters remained to be resolved, and so the matter remained listed for hearing, with the assistance of Auslan interpreters by video link, the Father and Independent Children’s Lawyer also by videolink and, given technical problems, the Mother and her lawyer in court.  The parties agreed that the remaining matters could be addressed by submissions made on the basis of the filed evidence and some portion of the material produced on subpoena.

The contested matters

1. Two contested issues were identified.  The first related to whether there should be a restraint imposed on the Mother such that the time with D could not take place in her home.

2. It should firstly be noted that this was sought by the Father in the context of orders that restrain the Mother from bringing D into contact with Mr Pascoe, her husband with whom she lives.  The Independent Children’s Lawyer did not support such a restraint.

3. The second related to whether there should be a short block period of three nights for the Mother with D each school holiday period and twice in the Christmas holiday period.  The parties agreed that if there was to occur that it should not result in the Mother always having Christmas day.

4. The Mother sought this order so as to allow her to take D to meet the Mother’s family and to spend time with them as well as the Mother.  The Mother’s family lives in City V in NSW.

5. As to the first of these issues, being whether the Mother should be restrained from spending time with D at the Mother’s home, the Father raised a number of issues.  He identified a concern that, as such an arrangement would require Mr Pascoe to be absent from his own home, it would place additional strain on the Mother’s family unit.  He said that Mr Pascoe’s exclusion from his own home could constitute an ongoing aggravation to Mr Pascoe.  This aggravation of Mr Pascoe (implicitly in the context of previous family violence and of Mr Pascoe’s intellectual disability) would then, he said, result in an increase of risk. 

6. These issues were touched upon by the Single Expert.  At [134] she identified the need to consider the distress and stress occasioned upon Mr Pascoe by orders precluding him from his home, in the light of his vulnerabilities, including his intellectual disability and emotional sensitivity.  The requirement to consider this aspect was emphasised at [82] where Mr Pascoe expressed his anger at the prospect of being excluded from his own home to the Single Expert.  Mr Pascoe’s emotional regulation limitations were observed by the Single Expert to be a risk factor for D.[1] 

   [1] See p31 of the Single Expert Report.

7. These concerns are sufficiently answered by the restraint imposed on the Mother in relation to bringing D into contact with Mr Pascoe.  The Mother would be unable to bring D into the home while Mr Pascoe was present.  The order would not require the time to be in the Mother’s home.  The issues raised by the Father in relation to the impact upon Mr Pascoe would be a matter for management by the Mother and Mr Pascoe. 

8. It should also be observed that Mr Pascoe has identified what he has done under the current regime whereby in the interim the Mother has been spending time with D and excluding Mr Pascoe.  He has identified that he has spent the time visiting friends or his cousin.

9. Issues raised as to the Mother’s compliance with this restraint are dealt with later.

10. The Father also raised an issue of risk of sexual abuse to D posed by Mr Pascoe, or posed by D’s siblings.  The issue of sexual abuse risk posed by Mr Pascoe is adequately dealt with by the order excluding Mr Pascoe.

11. The issue as to the siblings arises from material produced by the ACT welfare authority.  An intake form from that agency records at 12 September 2018 that a person who was not identified in the produced record, claimed that D had said that “her vagina was hurting (at some point) and she said her half sister…had puts sticks up there.”

12. The Single Expert at page 31 described the risk as “indeterminate” but noted that “(s)uch sibling sexual abuse is relatively common in families where the children have been sexually abused by an adult.”  In this case there is a lack of material to allow any credence to be placed on the ACT welfare entry.  Neither its timing nor its source are identified, depriving it of the ability to be relied upon.  Hence the evidence does not disclose the risk adverted to by the Father.

13. The Father also asserted a high degree of police involvement and suspicion regarding people attending at the home and drug use.  These matters were not borne out as current matters of concern on the evidence.

14. It should also be recognised that there are strong considerations pointing toward the Mother being at liberty to spend the time with D in her own home.  Both the Mother and the Independent Children’s Lawyer noted the unnatural nature of the time if it cannot occur in the home.  The proposed restraint imposes an unreasonable burden, and deprives D of exposure to the normal environment of the Mother and the siblings.  It may be anticipated that the home is familiar to the Mother and siblings and contains what they use for daily functioning, care and play.  Denying access to the home, and requiring an alternative location on a regular occurrence as is contemplated by the proposal, summer and winter, is a heavy impost that serves the enjoyment of meaningful relationship and its benefits with the Mother poorly.

15. The restraint proposed by the Father should not be made.  It is not in D’s best interests.

16. As to the second of the issues, being the short blocks of school holiday time, the Father alleged that the Mother is not to be trusted.  He identified that prior to the previous final orders the Mother had not been compliant with obligations restraining her from the consumption of alcohol.  He also identified that, in the context of restraints imposed in the interim orders pending this hearing, that the Mother had been non-compliant by allowing Mr Pascoe to speak with D on the telephone.

17. It may be observed that, other than the telephone issue it is not alleged that there has been a failure on the part of the Mother in compliance in the restraint from bringing D into contact with Mr Pascoe of 5 June 2019, or in her compliance with any restraints imposed by the 2018 orders.

18. The Mother’s conduct in relation to the telephone contact has been explained as a lack of understanding on her part that, when corrected, did not reoccur.  This aspect of non-compliance does not significantly raise a risk of non-compliance with the currently proposed terms.

19. The anticipated benefits to D of short blocks of time with the Mother, D’s siblings and the Mother’s family mean that orders permitting such are in D’s best interests.  D is not exposed to an unacceptable risk by such orders.

The variations

1. A number of variations to the orders were raised during submissions.  These proved to be non-contentious.

2. The first related to the interim suspension of face to face time between D and the Mother in the context of the current COVID-19 crisis and restrictions.  The parties had agreed, at the instigation of the Mother to suspend her face to face time and substitute Facetime.  This was the product of the Mother’s concerns for the impact on D under the present restrictions and environment. 

3. However, the terms of the order specified that the suspension would continue until there was a lifting of social gathering restrictions in NSW.  On reflection the parties both considered that this was an unnecessary barrier, and that the terms should reflect that the suspension of face to face time should only continue for so long as the Mother considered it necessary for D’s wellbeing.

4. The order will accordingly be amended.  It is not in D’s best interests to put in place an artificial barrier to her time with her Mother.  Given the Mother’s instigation of, and concern regarding the issue, the judgment as to the timing of the transition to face to face time in the light of the COVID-19 issues can reasonably be left to her.

5. The second related to the issue of Christmas day as set out above in relation to school holiday arrangements.

6. The third related to the need for a better expression of the school holiday time to make it clear that what was ordered places an obligation on the Father to facilitate it.

Conclusion

1. Orders will be made generally as agreed by the parties with variations to incorporate school holiday time, and the change in relation to the facetime only period.  No order will be made restraining the Mother from spending time with D in the Mother’s home, in the context of the restraint on her bringing D into contact with Mr Pascoe.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 April 2020.

Associate: 

Date:  23 April 2020

Annexure A

Orders by consent

1. That all previous Orders be discharged.

2. That all outstanding Contravention Applications are dismissed.

3. That Mr O'Keefe (“the Father”) have sole parental responsibility for D, born … 2014.

4. That the Father shall consult with Ms Pascoe (“the Mother”) prior to making any long term decisions for D and notify her of any decisions in writing once they are made.

5. That D shall live with the Father.

6. That commencing from the date of these Orders, D shall spend time with her Mother as follows:

   a.   From the next available Sunday, and each alternate Sunday after, from 10:00 until 6:00pm;

   b.   If the child is at school, from the conclusion of school until 6:00pm each Tuesday and Friday;

   c.   If the child is not in school, including during holidays, from 10:00am until 6:00pm each Tuesday and Friday.

7. That the Father will facilitate facetime call’s between the child and the Mother:

   a.   Each Sunday that the child is not spending time with the Mother at 6:00pm;

   b.   At any reasonable time as requested by the child; and

   c.   The Father is to initiate the calls for the purpose of this Order.

8. That notwithstanding any other Order, D’s time is amended for special occasions as follows:

   a.   On the Father’s day weekend, if D was to see her Mother, that time is to take place on the Saturday from 10:00am until 6:00pm; and

   b.   On Mother’s day, D will spend time with her Mother from 10:00am until 6:00pm.

9. That changeover’s take place:

   a.   When the child is at school, with the Mother to collect the child from school; and

   b.   At all other times, at the P Town Cafe.

10. That the parties are restrained from consuming alcohol while the child is in their care, or allowing the child to come into contact with anyone who has consumed alcohol to excess.

11. That the Mother is restrained from bringing the child into contact with Mr Pascoe or Mr H.

12. That both parents be at liberty to attend any events that are held by, or at, D’s school to which parents are ordinarily invited.

13. That this Order act as an authority for both parents to access information to which parents are ordinarily entitled from the following organisations:

a.   The child’s school or education providers, including tutors;

b.   The child’s medical practitioners including specialists or mental health practitioners; and

c.   Any extra-curricular activity providers.

14. That the parties agree to attend a further mediation in 2023.

15. Until the government lifts the restrictions on the size of social gatherings, the Mother’s time will take place by facetime or similar service at the following times:

a.   4:00pm on Tuesday and Friday;

b.   10:00am each alternate Sunday; and

c.   Any other times that the child wishes to contact the Mother.

NOTATIONS

A.The parties agree to the above Orders.

B.That the following issues remain outstanding:

a.Whether the Mother should have holiday time in the form of the following Order:

7.That the Mother may request additional time with the child during the school holidays as follows:

a.    With 7 days’ notice being given to the Father in writing;

b.    For a single block of no more than 3 nights;

c.    Once per ordinary holiday periods and twice during the Christmas holiday period;

d.    That this time is to allow the Mother to facilitate the child seeing her extended family;

e.    That the mother will provide a phone number for a family member she is visiting to the Father; and

f.     That any other restrictions in these Orders will continue to apply.

b.Whether the Mother should be permitted to spend time with the child at her home.

C.The parties request that the Court hear submissions from the parties with a view to determining the above outstanding disputes.