Pickard & Farnstrom

[2021] FCCA 702

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pickard & Farnstrom [2021] FCCA 702

File number:	MLC 1312 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	26 April 2021
Catchwords:	FAMILY LAW – parenting – father’s spend time arrangements with the child – allegations of family violence – supervised time – where mother is supervising the father’s time – where independent children’s lawyer does not support mother supervising – where parents want matter finalised – whether order should be final – final order made
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC.
Number of paragraphs:	48
Date of last submission:	12 April 2021
Date of hearing:	9 March 2021 and 12 April 2021
Place:	Melbourne
The Applicant:	Appeared In Person
Solicitor for the Respondent:	Ms Cuzzilla of Chinka (Hep) Steel
Solicitor for the Independent Children's Lawyer:	Mr M Finn of V M Family Lawyers

ORDERS

MLC 1312 of 2018

BETWEEN:

MS PICKARD

Applicant

AND:

MR FARNSTROM

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	26 APRIL 2021

THE COURT ORDERS THAT:

1.All extant orders relating to X born in 2007 and Y born in 2013 (“the children”) are discharged.

2.Subject to paragraph 3 herein, the Mother, Ms Pickard (‘the Mother’), have sole parental responsibility for making decisions about major long-term issues in relation to the children or either of them.

3.Prior to making a decision in relation to a major long-term issue in relation to the children or either of them (“the issue”) the Mother shall;

(a)Advise the Father, Mr Farnstrom (‘the Father’), of what the issue is and her proposed decision in writing by text message or email and provide him with the opportunity to provide his view or input into the proposed decision in writing by txt message or email; and

(b)Confirm that the Father has received the text message or email about the issue; and

(c)Consider the response or input about the issue provided by the Father in writing by text or email (if any) before making the decision about the issue; and

(d)After considering the response or input from the Father (if any) make the decision and inform the Father of the decision about the issue in writing by text or email as soon as practical.

4.Save as provided in these orders the Father not spend any time with the children or either of them, or communicate with the children or either of them, unless;

(a)that time, the circumstances and conditions of that time, including whether or not it should be in the presence of or supervised by any person, has been agreed between the parties from time to time in writing or text message or email beforehand; and

(b)in the event of a dispute as to whether or not any particular time circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.

5.All extant applications are otherwise dismissed.

6.The appointment of the Independent Children’s Lawyer is discharged 28 days after the date of these orders.

AND THE COURT NOTES THAT:

A.The parties were advised at the hearing on 12 April 2021 that no appearance would be required at this judgment delivery.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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 Pickard & Farnstrom is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. I have on 13 April 2021 told the parties of the substance of the orders I intended to make and reserved my reasons.  These are those reasons.  This matter concerns parenting arrangements for the children X, born in 2007 and Y, born in 2013 and (‘the children’).  The Applicant Mother is Ms Pickard (‘the Mother’) and the Respondent Father is Mr Farnstrom (‘the Father’).  The parties commenced cohabitation in 2005 and separated on a final basis in December 2016. 

2. The parties have two children X born in 2007, now 13 years and Y born in 2013, now 6 almost 7, (“the children”).

3. The Court and the children have had the benefit of an Independent Children’s Lawyer in this matter since very early on in the proceedings.  The proceedings first commenced when the Mother filed her Initiating Application on 8 February 2018.  Since then there have been various Court events and orders relating to the children’s live with and spend time with arrangements.  There has been a section 11F child inclusive conference memorandum dated 13 February 2018 and two family reports prepared in this matter, the most recent of which was completed on 8 May 2020.

4. The parents now agree about the children’s time and the Independent Children’s Lawyer opposes their agreement and seeks that the children’s time be limited to supervision at a contact centre. 

5. The children currently live with Mother and pursuant to the most recent orders of 28 January 2021 are supposed to be spending time with the Father supervised by the paternal grandfather but were spending time with the Father supervised by the Mother. 

   THE 9 MARCH 2021 HEARING

6. The matter was listed before me when the Independent Children’s Lawyer contacted my associate on 24 February 2021 requesting that the matter be mentioned.  The Independent Children’s Lawyer sought to have the matter listed sooner than the next scheduled hearing date on 12 April 2021 as the orders relating to the Father’s supervised time with the children were not being complied with.  The children live with the Mother and pursuant to the orders of 28 January 2021 only spend time with the Father supervised by the paternal grandfather but the Independent Children’s Lawyer stated that this was not being complied with and the Mother was being forced to supervise contact herself.

7. The matter was subsequently listed before me on my next available duty list day on 9 March 2021.  The Mother appeared in person, the Father was represented by his solicitor and the Independent Children’s Lawyer appeared himself.  The matter was called over in the morning and then stood down to allow for the Mother to contact the duty lawyer.

8. The matter retuned before me in the afternoon and just after 5.30pm and I reserved my orders and reasons but made orders giving the parties the option of providing further written submissions.  The Father’s solicitor emailed in further written submissions on 15 March 2021 and the Mother emailed in hers on 17 March 2021 in accordance with the orders I made.  The Independent Children’s Lawyer did not file any further written submissions but had provided written submissions and a minute of proposed orders on the morning of the hearing.

9. The parties have not addressed any specific matters of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and hence I do not need to address specific matters of section 60CC but I have determined this matter within the confines of the parties dispute and by considering the matters set out in subdivision BA of Part VII of the Act.

   THE CURRENT PARENTING ARRANGEMENTS

10. The children live with the Mother and pursuant to the orders made by consent on 28 January 2021 were to spend supervised time with the Father.  It is common ground that the Father had not spent any time with the children for a significant time until this agreement was reached.  The relevant paragraphs of those 28 January 2021 orders relating to the Father’s current time with the children are:

    4.The Father spends supervised time with the children each Sunday between the hours of 11.00am to 2.00pm for 4 consecutive Sundays to commence on 17 January 2021.

    5.At the conclusion of the 4 consecutive Sundays, the children shall spend supervised time with the father each alternate Sunday between the hours of 11.00am and 3:30pm.

    6.During all Spend Time Periods it be supervised by the paternal Grandfather and the father and the children will remain in the Grandfather earshot and eyesight throughout the entire Spend Time Period.

    7.The mother shall deliver and collect the children and commencement and conclusion of all Spend Time Periods at the home of the paternal Grandfather.

11. The Independent Children’s Lawyer submitted at the hearing that the above orders were not being complied with and that the Mother, out of fear, has been supervising the contact of the children.

12. The Father has said in his further written submissions the reason that the supervised time order with the paternal grandfather has not been complied with is because the paternal uncle had moved back home with the paternal grandparents and he was having issues with alcoholism.  The Father says he advised the Mother that he did not believe it was in the children’s best interests to spend time with him at the paternal grandparent’s house until the paternal uncle had entered into a rehabilitation facility. 

13. The Mother rejects this in her further written submissions and says in fact it was her who refused contact to occur there due to safety concerns for the children and the notable reluctance from the children to go.

14. I find that the Mother is able to and does make decisions about the children’s welfare in their best interests and safety including the circumstances of supervision.

15. The Independent Children’s Lawyer alleges the Mother has been the victim of significant family violence from the Father.  I acknowledge and have considered the written submissions of the Independent Children’s Lawyer and I repeat them here:

    1.These proceedings have been ongoing since 2018 and have had an adverse effect on the emotional disposition of the mother and the children.

    2.The children have been exposed to a significant level of instability given the mother’s allegations of violence and harassment.

    3.At present the parties have no ability to co-parent or communicate and, in the Family Report the Consultant notes that the child Y expressed anxiety and confusion.

    4.The father has shown an inconsistency in complying with the court Orders and in particular the provision of Supervised Urine Screens and attendance at a Family Report.

    5.The fathers lack of compliance with the spend time orders is reflective of the father’s lack of preparedness to provide a consistent routine spend time arrangement.

    6.The tenor of the evidence before the Court is suggested of the father lack of commitment to the children.

    7.The father failure to comply with drug screen on a regular basis demonstrates the father’s lack of commitment to the children.

    8.Any spend time Orders need to be presumptive and in default of compliance with such clear Orders the spend time periods be suspended.

    9.Given the father non-compliance with Court Orders and inconsistent attitude towards spend time Orders, the Independent Childrens Lawyer calls into question the father’s contribution to the best interests of the children.

    10.It is currently unknown what psychological effect the litigation is having the mother, her capacity to parent and the pressure placed on the children given the lack of consistent structure and routine and their exposed to domestic violence.

    11.The father did not participate in a Family Report with Family Consultant and it is concerning that no expert family assessment has ever been undertaken on the father nor any observation of the father with the children.

    THE SUPERVISED TIME ISSUE

16. It is clear that the Mother supports a relationship between the children and the Father.  The Mother told me that she is seeking for “some sort of visitation for the kids (with the Father) given there has been so many changes already”.  The Father told me that he did not intend to participate in the litigation any further unless he was able to see the children by agreement with the Mother. 

17. The Father submits that the children would be uncomfortable spending time with him at a supervised contact centre and that they would feel comfortable spending time with him at their own residence.  The Mother told me that her main concern was that the children may not cope with having supervised access.  I clarified with the Mother and she confirmed that when she referred to supervised time she means at a formal supervised centre.

18. The issue I have to deal with is whether or not the Mother should be permitted to be responsible for and to supervise the time with the Father as she seeks.  The Independent Children’s Lawyer does not support the Mother supervising the time or having the responsibility to determine who should supervise.  The Mother supervising time has the potential to place her and the children at risk of family violence, including abuse and coercive behaviour, from the Father.

19. The father denies the allegations of family violence.

20. The Family Report dated 8 May 2020 states:

    [21]Ms Pickard denied having any current issues with drug or alcohol misuse. She cited the last time she had consumed cannabis was in March 2018…

    [22]A psychiatric assessment was completed for both parties. Ms Pickard’s psychiatric assessment was completed by Dr B dated 27 July 2018. At interview Ms Pickard agreed with the psychiatric assessment of Dr B, which stated that she suffered from an adjustment disorder to trauma related to the traumatic child birth of Y, with depressive and anxious features.

21. In determining this issue I take into account section 60CA of the Act which state:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

22. I am also to take into account paragraph 2 and 2A of section 60CC of the Act:

    (2)      The primary considerations 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.

    (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

23. The Independent Children’s Lawyer is an experienced and cautious practitioner.  I have noted carefully what he has to say but the Mother supports a relationship between the children and the Father and seeks the responsibility to supervise the children’s time with their Father.  The Father accepts supervision will occur and seeks that the Mother supervise his time.   I have determined that it is in the children’s best interests to give the Mother that responsibility.  I expect the Mother to cease time in the event that the Father’s behaviour exposes her or the children to any risk of family violence and I find that she will.

    WHETHER THE ORDERS SHOULD BE FINAL

24. At the hearing the Mother told me that she is seeking for final orders to be made.  The Father indicated both at the hearing and to the family report writer that he does not want to remain engaged in the court process.  He told me that he would not attend a contact centre and that it is not in the children’s interests to attend a contact centre and I understood him to mean when the alternative of the Mother supervising the time was available. 

25. This may be manipulative behaviour on his part.  On the other hand he accepts supervision will occur and accepts that it occur supervised by the Mother.  That is a considerable concession on his part and is consistent with a commitment to the children’s welfare.

26. The Mother stated in paragraph 15 of her further written submissions that:

    [15]Continuing these proceedings on further may have an adverse effect on the children’s emotional wellbeing, and the Mother’s.  As a direct result of proceedings going for so long with many requirements and mentions taking place near special occasions, birthdays and other events which ultimately effect the children.  Both children have had to miss school days for family reports interviews and meetings.

27. The Father stated in paragraph 14 of his further written submission that:

    [14]It would seem that the proceedings have had a psychological effect on all parties including the children and the parties would like the proceedings to be finalised.

28. Paragraph 46 of the Family Report dated 8 May 2020 stated:

    [46]Mr Farnstrom has a significant amount of work to do to demonstrate his commitment to X and Y. It could be argued that Mr Farnstrom’s failure to attend the current Family Report assessment, along with his failure to submit drug screening tests to the Court, exhibits a lack of child focus. Both children require a safe and consistent relationship from their care givers. If Mr Farnstrom is not actively addressing his drug use issues or attending Court appointments, it could be assessed that he is unable to meet the needs to the children and support their wellbeing. It appears that Mr Farnstrom does not want to remain engaged in the Court process, and as such it is recommended that children remain living with the mother and the matter be finalised in Court. Finalising the matter would release the children from the ongoing burden of litigation, and provide Ms Pickard with the ability to focus on their emotional wellbeing rather than the ongoing Court matter.

29. At paragraph [48] the Family Report further highlights the benefit of finalising this matter:

    [48]At Y’s developmental age she is forming strong familial relationships, and learning about the family dynamics. Friendships are also pivotal within this developmental stage, and children use friendships to learn social norms and cues from one another.  It is also integral that her caregivers provide structure and routine, and be able to regulate Y’s emotions. Finalising this matter would provide Y with structure and routine, and create clear familial care giving roles for her to rely on. Additionally, if matters are finalised, it will be important that there is an ongoing focus on the needs of Y. It would seem attention has previously concentrated on X’s behaviours, and the needs of Y have been somewhat minimised. It is clear that Y has been affected by the parental conflict, and her feelings of anxiety may have been minimised due to her age and inability to verbalise her thoughts and feelings. Ms Pickard described Y as “bubbly and outgoing”; this may be a technique Y employs to cope with her feelings of confusion and anxiety. Y may benefit from engaging in therapy to provide her with additional support around her feelings of anxiety, a play group may be appropriate to help Y manage her feelings and form additional positive social friendships. 

    (emphasis added)

    PROPOSED FINAL ORDER

30. Prior to the matter being called back on in the afternoon I asked my associate to email and draw to the attention of the parties the below draft order which I thought may be relevant:

    Save as provided in these orders the Father not spend any time with the children or either of them, or communicate with the children or either of them, unless;

    (a)that time, the circumstances and conditions of that time, including whether or not it should be in the presence of any person, has been agreed between the parties from time to time in writing or text message or email beforehand; and

    (b)in the event of a dispute as to whether or not any particular time circumstance or condition has been agreed, then the Mother's last communication is to be determinative of that dispute.

1. I asked the Mother if she understood the position that such an order would put her in and she told me that she does and she confirmed that she communicates with the Father by text message and phone.  The Father does not oppose such an order.  The Mother does not oppose such an order.

2. I contemplated such an order because experience teaches family lawyers that where matters are left to the agreement of the parties in high conflict cases disputes often arise about what was or wasn’t agreed and this can lead to confusion and stress and conflict for anyone involved in the children’s lives.

3. The Father’s written submissions include the following:

   4.The parties have had Psychiatric Assessment and Reports undertaken in 2018, in the Report dated 20 October 2018 by Dr C, it was assessed that the Father had adjustment disorder with mixed anxiety and depressed mood. It was of the opinion of Dr C that “in this version psychiatric disorder would not appear to be a significant factor with regard to his ability to provide a reasonable level of positive parenting or in having the children live with him or spend time with him unsupervised”.

   5.In the Family Report dated 15 May 2018 prepared by Family Consultant Ms D it was recommended that the dispute no longer existed as the parties were in communication. It is noted in paragraph 45 of this Report that “during the assessment, Ms Pickard denied any physical violence from Mr Farnstrom, and advised she felt harassed about property settlement by Mr Farnstrom”.

   6.The Father admits to not having undertaken a couple of urine drug screens requested of him. The Father was unable to undertake hair follicle test when first requested due to COVID-19 lockdown and the cost. He has now undertaken a hair follicle test dated 4 November 2020 which has come back negative. He has also recently undertaken a supervised urine drug screen which has come back positive for Benzodiazepines which is due to Diazepam medication prescribed by his GP for anxiety.

4. Those matters are not disputed by the Mother.  Following those submissions the Independent Children’s Lawyer did not change his opposition to the Mother supervising the Father’s time.

5. The less than complete compliance by the Father with drug testing supports the case of the Independent Children’s Lawyer.  However I do not have evidence that the Father’s psychiatric health or drug abuse precludes supervised time.

6. I now have the parents in agreement about how the Father’s time should proceed.  This is a very significant development.  I do not have evidence that the Mother only seeks to supervise time out of fear.  I do not have evidence that the Mother would expose the children to harm.  I find that there is not an unacceptable risk to the children if the Mother determines the extent and manner of supervision including if she herself supervises that time.  I find that the Mother will not expose the children to family violence including during her supervising the Father’s time.

7. It is common ground between the parents and the Mother that the children should live with the Mother.  That is a significant matter and informs my decision to permit her to determine how the children’s time with the Father should proceed.  That may be burdensome for her but it is a burden she seeks.

8. Hence I propose to make a final order in similar terms as I asked the parties to contemplate save that I shall refer to “the parents” rather than the “the parties”.

9. The parents have sought final orders and because of the benefit to the children and the parents of litigation ending I propose to make final orders.

   THE PARENTAL RESPONSIBILITY ISSUE

10. The parties had not made submissions as to parental responsibility for long term decisions affecting the children.  Unless an order is made the parents have shared parental responsibility.  When the matter returned before me on 12 April 2021 as listed, I advised the parties of my intention to make final orders as to time as the Mother sought and the Father did not oppose (with my reasons reserved) and asked for submissions about parental responsibility for decisions as to major long term issues.  The Mother sought sole parental responsibility.  The Father sought equal shared parental responsibility and alternatively as a second or fall-back position to have the opportunity to have input into such decisions before they were made.  I stood the matter down to give the solicitor appearing as counsel the opportunity to consult the Independent Children’s Lawyer.

11. The matter was dealt with on a mention hearing and on written submissions and on the papers (as sought by the parents) that is without a testing of the evidence.  Hence I am unable to make findings about the contested allegations of family violence.  However although those allegations are untested and undetermined, in the circumstances of this case, I do not disregard them either.

12. The matter returned late that afternoon on 12 April 2021 in a busy duty list including complex matters.  The Mother did not oppose an obligation on her to inform the Father and take his views into account before making a decision about major long-term issues in relation to the children.  The Independent Children’s Lawyer supported the Mother’s position.  After hearing those submissions I told the parties, in general terms, of the orders I proposed to make and that I would make orders and deliver reasons later.  I told the parties I would order that the Mother have sole parental responsibility but with an obligation to inform the Father and take his views into account before making a decision about major long-term issues in relation to the children.

13. The effect of these orders is that the Mother has the responsibility for determining supervision of the Father’s time.  Without the Mother’s support of the of the Father’s relationship with the children the options would be orders for no time or supervised time at a contact centre or continuation of the proceedings.

14. In determining parental responsibility I must apply section 61DA of the Act (the presumption of equal shared parental responsibility) and in this case the evidence shows;

    (a)a troubled history of the parental relationship; and

    (b)untested and undetermined but not disregarded allegations of family violence; and

    (c)litigation extending over years.

15. I also take into account the form of the order as to the children’s time that I find is in the children’s best interests. 

16. I also take into account the obligations of section 65DAC of the Act which is as follows:

    (1)      This section applies if, under a parenting order:

    (a)       2 or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2)      The order is taken to require the decision to be made jointly by those persons.

    Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3)      The order is taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)       to make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

17. In this case it is not in the children’s best interest’s for the parent supervising the other parents time to have the obligations of section 65DAC(3)(a) & (b) as set out there.

18. In all these circumstances I find that the presumption of equal shared parental responsibility of section 61DA is rebutted by the above matters that satisfy me that it is not in the children’s best interests for the parents to have equal shared parental responsibility. It is in the children’s best interests that the Mother, with whom the children live, have sole responsibility for decisions about major long-term issues in relation to the children.

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

Associate:

Dated:       26 April 2021