O’Neill & Kestle

Case [2022] FedCFamC1F 806

Federal Circuit and Family Court of Australia

(DIVISION 1)

O’Neill & Kestle [2022] FedCFamC1F 806

File number(s): SYC 3308 of 2016
Judgment of: HARPER J
Date of judgment: 20 October 2022
Catchwords: FAMILY LAW – PARENTING – One child of the relationship aged 7 – Brief relationship – Where mother was self-represented throughout proceedings – Allegations made by father that mother has pathologised the child – Where child has half siblings on both sides – Where parties live hours apart – Where mother has been primary carer since separation – Current interim orders for child to spend three weekends per term and half of school holidays with the father – Both parents seek sole parental responsibility and for the child to live with them – Where both parties make allegations of abuse or family violence – Allegations of emotional abuse and coercive control in father’s household – Allegations of sexually inappropriate behaviour between child and step sibling – Allegations of physical discipline inflicted by the father – Where mother’s anxiety and lack of stability in child’s life is said to be psychologically damaging to the child – No findings made of abuse or family violence – Where child has positive relationship with both parents and half siblings – Where mother has a history of contravening Court orders – Where neither parent has willingness nor capacity to co-parent – Unilateral decisions made by the mother concerning the child’s medical treatment – Where child is undergoing numerous forms of intervention – Where it is possible the child has ADHD and behavioural or learning disorders – Presumption of equal shared parental responsibility rebutted – Where disruption to child with behavioural problems likely caused by change of residential parent militates in favour of leaving the child with the mother – Distance between parents’ homes makes equal or significant time impractical with non-residential parent – Orders made for child to live with mother and spend time with father three weekends each school term and half of school holidays – Order made for mother to have sole parental responsibility.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 65D(1), 65DAB
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
L v T (1999) FLC 92-875; [1999] FamCA 1699
M & S (2006) 37 Fam LR 32; [2006] FamCA 1408
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Sahrawi & Hadrami (2018)…

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AGLC
O’Neill & Kestle [2022] FedCFamC1F 806
Case
[2022] FedCFamC1F 806
Decision Date

CaseChat Overview and Summary

The case of O’Neill & Kestle involved a dispute between the father, the child, and the mother concerning the best interests of the child, primarily focusing on the allocation of parental responsibility and the child’s living arrangements. The mother, self-represented throughout the proceedings, contested the father’s application for sole parental responsibility and sought to maintain the child’s primary residence with her. The court had to determine whether it was in the child’s best interests to have sole parental responsibility allocated to either parent, whether the child should continue living primarily with the mother, and other related issues such as the time the child should spend with each parent and the capacity of each parent to meet the child’s needs.

The court considered the primary considerations under section 60CC(2) of the Family Law Act, giving greater weight to the need to protect the child from physical or psychological harm. The court noted that both parents exhibited limited capacity to communicate effectively and co-parent, which necessitated a determination in the best interests of the child. The court also considered the additional considerations under section 60CC(3) of the Act, including the child’s views, which, due to the child’s young age, were given limited weight. The court found that neither parent posed an unacceptable risk to the child and that the child wished to sustain a relationship with both parents.

In its decision, the court rejected the mother’s claims that the father and his family had abused the child by portraying her as a dangerous figure. The court concluded that there was no evidence to support these claims. It was also noted that the child had expressed a desire to live with the mother "always" and visit the father "lots", indicating transient views likely due to the child’s age. The court found that the child’s views were important but did not outweigh other considerations due to his young age.

The court ultimately decided against allocating sole parental responsibility to either parent, as it was not in the best interests of the child to have such an order made. Instead, it determined that the child should continue to live primarily with the mother, subject to certain conditions to facilitate the child’s relationship with the father. The court also outlined specific arrangements for the time the child should spend with each parent and required both parents to use a communication application to assist in clear and focused communication strictly about the child.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It should also be noted that the mother was self-represented for the entirety of the proceedings. She is a professional, having obtained a specialist accreditation in or around 2015, and is currently self-employed. BACKGROUND The parties do not agree on the length or nature of their relationship. The relationship began some time in 2014. In 2014, the father separated from his then-wife, with whom he has a daughter, M. He contends that he subsequently began casually dating the mother, but the relationship ended in late 2014. The mother asserts that she met the father in early 2014 on an adult website, and that the relationship began approximately one month later. At this point in time, the mother asserts that they were both still in relationships with their previous partners. The mother states that their relationship ended in August 2015. It is unnecessary to resolve this factual disagreement. It was common ground that the relationship was short. In or about late 2014, the mother informed the father that she was pregnant with the child. The child was born in 2015 at O Hospital in City P and was subsequently discharged from the neonatal unit. The father was present at the birth of the child. In late 2015, the father commenced a relationship with his current wife, Ms Q (“Ms Q”). In or around late 2015, the father requested that the child undergo a DNA test to confirm the child’s parentage. In early 2016, the results of the DNA test confirmed that he was the biological father of the child. Following the results of the DNA test, the father commenced spending regular time with the child. This time occurred with the mother present, and at times without the mother. Also in early 2016, the father, Ms Q, and her children commenced residing in a rental property in City P. They returned to Sydney most weekends to spend time with the father’s daughter, M. They lived between their homes in Sydney and City P. In early 2016, the mother commenced a new relationship. In early 2016, the mother and the child moved in with the maternal great-grandmother at her home in Suburb R, City P, as a result of financial strain. In early 2016, the parties attended mediation at AN Family Services in City P. The parties reached an agreement relating to some parenting matters, including that the child would travel with the mother to the United States of America and Country S in mid-2016. Following their return, the mother separated from her boyfriend and father of her second child. Between early and mid-2016, the father, the paternal grandmother, and his daughter, M, spent time with the child on a regular basis. This occurred both with the mother present and with the mother absent. The father did not spend time with the child between mid-2016 and mid-2017. In mid-2016, the mother learned that she was pregnant with her second child, T. In late September or early October 2016, the mother commenced working in City P. In or around late 2016, the mother moved back into her home at Suburb U with the child.

Evidence

Evidence Before The Court

By the end of the trial, the main issues requiring determination were the following:(a)Whether it is in the child’s best interests to make an order for sole parental responsibility;(b)Whether it is in the child’s best interest to continue to live primarily with the mother, or undergo a change of residence to live primarily with the father;(c)Whether the child living primarily with the mother should be conditional upon her attendance on a psychologist;(d)The time the child should spend with either parents;(e)The capacity of each parent to meet the child’s needs;(f)The capacity and willingness of each parent to facilitate and support the other parent's relationship with the child; and(g)Whether it is in the best interests of the child to undergo a comprehensive assessment of his developmental needs, and whether the assessor should be provided with the single expert reports of Ms J. EXPERT EVIDENCEFamily Report Recommendations All parties relied upon the family reports of Ms J. These were referred to as the first expert report, which was dated 13 December 2019, and the second expert report, dated 26 August 2021. Ms J made recommendations at [111] of the second expert report to the following effect:(a)Any treating professional (current or future) should be provided with the final orders and a copy of both expert reports to assist with treatment planning and in understanding the complex family history that the child is exposed to, as the parents have shown to be unreliable historians;(b)The child should continue to live primarily with the mother;(c)The child should continue to spend time with the father in the same pattern (the third, fifth, and eight weekend of term, and half the school holidays);(d)The changeovers should ideally occur at the child’s school if possible. Alternatively, all changeovers should occur mid-way between the residences of the mother and the father at the closest McDonald’s if it cannot occur through school;(e)The parties should endeavour to do all changeovers possible, however, they should be permitted to send pre-nominated representatives to facilitate handovers;(f)The mother should continue to attend upon a clinical psychologist to address her ongoing anxiety, especially in relation to her assessment of risk in relation to the child. The treatment provider should be provided with a copy of both expert reports;(g)The mother should continue to seek professional support regarding strengthening her parental authority and following the provided guidance in addressing child’s oppositional behaviours whilst in her care;(h)The parties should continue to follow all reasonable recommendations made by the child’s paediatrician, including participating in future allied health assessments or interventions as requested; and(i)The parties should use a communication application such as “Our Family Wizard” to assist them in clear communication strictly focused on the child. Ms J was cross examined. As noted later in these reasons, she did not change her views or recommendations materially after considering a range of information available since the date of her second report.The child

Decision

Reasons for decision

In cross examination, the mother maintained that she believed the father and Ms Q had abused the child by running a narrative that she was a “dangerous and malign figure in his life”. She asserted this had been achieved by the father in concert with his family, and that they had achieved this even though the child spent time in their care only three weekends each term, and half of school holidays. I reject these assertions by the mother.Conclusion I do not find that the child is at any unacceptable risk in the care of either parent. I am unable find the child has been involved in inappropriate sexual behaviour with another child while in the care of the father. I do not find that the father has an inappropriate parenting style, or that he and Ms Q have convinced the child that the mother is a dangerous person in his life. I will return to the question of the parties’ respective parenting capacity and the risk to the child of continued exposure to parental conflict below. ADDITIONAL CONSIDERATIONS The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; Whilst a child’s views are but one consideration, they ought to be given proper consideration, but their importance depends upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have: Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35]. The child was seven years of age at the time of the final hearing and has only ever experienced the mother as his primary carer. The child has reportedly said to both parents that he wishes to live with them and not the other parent. It was recorded in the second expert report that the child expressed a desire to the expert to live at the mother’s house “always” and visit the father “lots”. If both parties are to be believed, it appears that the child’s views on which parent he wishes to live with are transient, which is consistent with the child’s age. For example, in her oral evidence Ms J was asked about the father’s evidence that the child was resistant to leaving at the time of transition back to the mother’s home. She agreed children become upset when they don’t know the next time they’re going to see dad or they don’t know what they’re going to be met with at mum’s. You know, there’s all these kind of other factors that mean that transitions aren’t predictable for [X].(Transcript 9 August 2022, p.418 lines 1–3) In light of the child’s young age, the weight of his views is diminished in determining what orders I should make. Accordingly, I give limited weight to the views of the child, save that he clearly wishes to sustain a relationship, and spend time, with both his mother and father.(b) the nature of the relationship of the child with: (i) each of the child’s parents; and

Ratio Decidendi

Legal Principle Established

It is convenient to repeat at this point that, as noted at commencement of these reasons, neither parent nor the ICL suggested an order for equal shared parental responsibility should be made. Each sought an order for the allocation of sole parental responsibility in their favour. It was accepted by all that the mother and father have exhibited limited capacity to communicate effectively or co-parent with each other, and the presumption should be rebutted in the best interests of the child. It was also common ground that the parent with whom the child lived should also have sole parental responsibility allocated to them. I agree this approach is in the best interests of the child. There will be no order for equal shared parental responsibility.PRIMARY CONSIDERATIONS In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act). Section 60CC(2)(a), “meaningful relationship” The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26] and McCall & Clark (2009) FLC 93-405 (“McCall”) at [115]; (b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; and(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M & S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287 at [36]; Champness & Hanson (2009) FLC 93-407. Whichever proposal is adopted by the Court’s order, the mother and the father will continue to live a long distance apart. The driving time between Suburb EE and NN Town is a number of hours. The connection between the risk of impairment to the maintenance of a meaningful relationship with a non-custodial parent and significant distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamCAFC 256, the Full Court observed at [27] that:There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.(Citations omitted)