Plouffe & Plouffe

Case [2023] FedCFamC1F 423

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Plouffe & Plouffe [2023] FedCFamC1F 423

File number: MLC 5339 of 2018
Judgment of: HARTNETT J
Date of judgment: 26 May 2023
Catchwords:

FAMILY LAW – PARENTING – Children – Where both parents seek sole parental responsibility – Where family violence perpetrated by the father around the period of separation and prior – Where the mother obtained IVOs against the father – Where separation occurred a number of years ago – Where both children experienced mental health issues – Where the mother has an enmeshed relationship with both children – Where the children have a meaningful relationship with both parents – Where the father alleges the mother has medicalised the children – Equal shared parental responsibility, save the father to have sole parental responsibility regarding medical decisions – No change to the children’s schooling – No relocation of the residence of the children – Orders made on applications of the father and the Independent Children’s Lawyer as to equal time spent by the children with each of their parents.

FAMILY LAW – COSTS – Where the Court made previous orders fixing and reserving the father’s costs of an Application in a Proceeding  – Where the mother’s conduct has caused the father to incur unnecessary legal costs – Costs order made in favour of the father and the Independent Children’s Lawyer – Costs ordered in a fixed sum
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 117
Cases cited:

Blinko & Blinko [2015] FamCAFC 146

Collins and Collins (1985) FLC 91-603

Goode & Goode [2006] FamCA 1346

M & M (1988) 166 CLR 69

Mulvany & Lane (2009) FLC 93-404

Penfold v Penfold (1980) 144 CLR 311

R & C [1993] FamCA 62
Division: Division 1 First Instance
Number of paragraphs: 191
Date of hearing: 9-10 August 2021, 16-18 August 2021, 15-17 August 2022, 4 November 2022, 21 November 2022
Place: Melbourne
Counsel for the Applicant: Ms Dellidis
Solicitor for the Applicant: Accord Family Law
Counsel for the Respondent: Ms Wheeler
Solicitor for the Respondent: Aston Legal Group
Counsel for the Independent Children's Lawyer: Mr James
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 5339 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PLOUFFE

Applicant
AND:

MS PLOUFFE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARTNETT J

DATE OF ORDER:

26 MAY 2023

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

THE COURT ORDERS, BY CONSENT OF THE APPLICANT FATHER AND THE INDEPENDENT CHILDREN’S LAWYER, BUT NOT CONSENTED TO BY THE MOTHER, THAT:

1.Subject to Order 3 herein, the mother and father have equal shared parental responsibility for the children, X born … 2007 and Y born … 2009. 

2.The father have sole parental responsibility for decisions regarding medical and allied health matters affecting the children, including counselling, therapy, psychological or psychiatric intervention.

3.The mother be restrained from:

a.changing the children’s…

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AGLC
Plouffe & Plouffe [2023] FedCFamC1F 423
Case
[2023] FedCFamC1F 423
Decision Date

CaseChat Overview and Summary

In the matter of Plouffe & Plouffe, the parties, a former married couple, were engaged in a dispute regarding the parenting arrangements for their two children, X and Y. The case was heard and determined by the Family Court of Australia. The primary legal issue before the Court was to determine the most appropriate parenting arrangements for the children, considering their best interests and the respective abilities of the parents to care for them.

The Court considered the evidence presented by both parents and the Independent Children’s Lawyer (ICL) regarding the children’s current living arrangements, their relationship with each parent, and the potential impact of any proposed changes. The Court also examined the history of the parents’ relationship, including past incidents of domestic violence and the father’s criminal history. Additionally, the Court evaluated the psychological assessments and reports to understand the children’s needs and the parents' capacity to meet those needs.

The Court concluded that an equal shared week-about arrangement was most likely to meet the children's best interests. It found that this arrangement would best promote and maintain a meaningful relationship with both parents. The Court recognised the father’s concern about the potential negative impact of the children relocating to Melbourne and remaining primarily in the mother’s care. However, it determined that the proposed parenting orders, which did not permit relocation and placed the children in the equal care of both parents, would mitigate this risk. The Court also highlighted the positive impact of the father’s increased time with the children on their mental health and school performance.

The Court ordered that the children remain in their current residence, with equal shared parental responsibility. The orders provided for a specific week-about schedule, ensuring the children spend regular and substantial time with both parents. This decision aimed to provide stability and support for the children, particularly as they navigated their immediate future.

Orders

Orders of the court

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Background

Background to the litigation

The ICL also relied upon written submissions dated 17 November 2022.BACKGROUND The father was born in 1972 and was aged 49 years at trial. The father is employed in sales in MM Town and is residing in NN Town, Victoria, in rental accommodation. The father is in good health. The mother was born in 1977 and was aged 44 years at trial. The mother is engaged in home duties and is residing in the former matrimonial home situated at T Street, PP Town, Victoria (“the FMH”). The mother has re-partnered with Mr M (“Mr M”). Mr M resides in Suburb U and has a child from a prior relationship aged approximately eight years. The mother is in relatively good health, despite having suffered from depression since she was approximately 18 years of age. She consults with a general practitioner and a psychologist as necessary. The parties met in early 2005; commenced cohabitation in mid-2005; were married in 2006; and separated on a final basis on 25 August 2017. Their cohabitation period was approximately 12 years. There are two children of the marriage, X born in 2007 and aged 15 years at trial (“X”), and Y born in 2009 and aged 13 years at trial (“Y”) (collectively “the children”). There is also an adult child from the mother’s former marriage, Mr O born in 2001 and aged 21 years at trial (“Mr O”). Mr O was aged approximately 12 months when the mother and her then husband, Mr N (“Mr N”), separated. Mr O was approximately four years of age when the parties met. He resided in their household from the commencement of their cohabitation until their separation. Following their marriage in 2006, the parties lived at the mother’s property in Suburb U. The mother retains her proprietorship of that property. The parties operated a retail business called W Pty Ltd (“the business”) in Suburb V. The parties briefly separated in 2007, whilst the mother was pregnant with X. In February 2007, Victoria Police made an application for an intervention order (“IVO”) on behalf of the mother and Mr O. In March 2007, a final IVO was made by consent against the father, for a period of 12 months and two weeks. This order was subsequently revoked by a final IVO made in substitution in August 2007 for a period of 12 months. The father was also charged with criminal damage and unlawful assault in January 2008, and was placed on a Diversion Order with no conviction. He was ordered to complete a Men’s Behaviour Change Program. The IVO was obtained in circumstances where, in February 2007 the father damaged some musical equipment and pushed a stand up heater to the ground. He had become jealous and angry about the mother playing music and singing old songs that she had written about a former boyfriend. The mother called the Police who arrived at the home. The father had departed the home. The father conceded that he had “lost it”,[1] stood over the mother, and smashed the equipment to get the mother to stop playing. The father denied pushing the heater over. The father claimed that he apologised to the mother for the incident. The parties subsequently reconciled and resumed their cohabitation.[1] Transcript 9 August 2021, p.22 line 12.

Evidence

Evidence Before The Court

Both psychologists at the time of writing their reports supported the retention of shared parental responsibility on the basis it would promote the growth of better collaboration and communication between the parents. Since those reports, and in light of the evidence at the final hearing, as submitted by counsel for the ICL, the Court finds the acrimony and communication between the parties is poor with respect to significant major decisions regarding the children, specifically in relation to issues around medical and counselling treatment of the children.[19][19] ICL written submissions dated 17 November 2022, p.1.Evidence of Mr R, Psychologist Mr R prepared a Family Report dated 11 December 2019. In particular, it sets out the views held by the children at the time of Mr R’s interviews with, and observations of them, in September and November 2019, being approximately two years after the parties’ separation. The father had at that time sought to reach agreement with the mother about his regular and consistent time spent with the children but to no avail. He appeared to accept that the mother was the primary care giver to the children, and he sought to spend substantial and significant time with them as an interim measure before proceeding to an equal time arrangement. At the time of the report, X wished to continue spending about the same amount of time with the father as the orders of 2 August 2019 provided for, whilst living with her mother. Y expressed the view he wished to share his time with his parents on a week about basis “because it’s fair” and “I love them both and I like being with them both and they love us and it’s fair”.[20][20] Family Report of Mr R dated 11 December 2019, paragraph 7.2. X, when discussing the question of future schooling, said to Mr R “I know Dad wants me to go to [E School]…and Mum’s been talking about [D School]… I have been thinking [E School]…but I don’t mind that much…what I don’t want is to start and then to have to change”.[21][21] Family Report of Mr R dated 11 December 2019, paragraph 6.8. Y explained to Mr R that he knew his parents had different views of where he might live and where he and X may go to school. Y said, nonetheless: “I know what I want if they want to know…I prefer to finish primary school where I am, and to go to [E School]”.[22] Y told Mr R he would like to spend equal time with each parent. Despite the expression of that wish, the mother began withholding the children from the father from time to time commencing in or about April 2020.[22] Family Report of Mr R dated 11 December 2019, paragraph 7.5. Mr R observed the children to move between their parents easily in that such movement was unremarkable. He said of the children “I do not think that either of them could be described as being of a particularly introverted or cautious temperament”.[23] [23] Family Report of Mr R dated 11 December 2019, paragraph 7.6. Mr R highlighted the differing perceptions of the mother and the children of the risk posed by the father. Mr R stated “I think I detected a tendency for [the mother] to conflate her own experience of [the father] with the children’s. She will need to separate her personal feelings about him from a consideration of what she wants to achieve for the children more if they are to come to parenting arrangements that are in X and Y’s best interests”.[24][24] Family Report of Mr R dated 11 December 2019, paragraph 5.5.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The ICL therefore submitted that the parties should retain equal shared parental responsibility save that sole parental responsibility for medical and allied health matters reside with one of the parties given their historic and continued inability to collaborate and agree on such decisions.[112] If medical decisions are to be made by one party, the ICL submitted they should reside solely with the father.[113][112] ICL written submissions dated 17 November 2022, p.1.[113] ICL written submissions dated 17 November 2022, p.1.CONSIDERATION It was common ground between the parties at trial that the children have a meaningful relationship with each of the parties and that the continuation of such relationship is beneficial to the children. The ICL submitted, a submission with which the father concurred, that an equal shared week-about arrangement was most likely to meet the children’s best interests and best promoted and maintained a meaningful relationship with both parents.[114][114] ICL written submissions dated 17 November 2022, p.2. It was the father’s contention that the primary and immediate risk to the children’s development was their relocation to Melbourne, where he argued the mother’s influence would be complete and overwhelming. It was further the father’s contention that the children will effectively be placed in the sole care of a parent who “presents with personality vulnerabilities, driven by her traumatic experiences, including a lack of boundaries, poor insight into her difficulties, catastrophic thinking, elevated suggestibility and dependent personality traits which are consistent with an unspecified personality disorder with dependent personality features that have affected her parenting and co-parenting”.[115] [115] Father’s Outline of Case filed 2 August 2021, paragraph 8. I accept that there is a risk to the children of psychological harm were they to relocate to Melbourne and remain primarily in the mother’s care. The consequence of that relocation would be a significant reduction in their exposure to the father and the stability and support he offers. That risk can be eradicated, or certainly significantly ameliorated by the orders the ICL and the father propose. Such orders do not permit a relocation of the residence of the children and further will place the children in the equal care of each of their parents. This is particularly important for the child Y as he navigates the immediate years to come. It is also important for the child X to ensure the ongoing stability of her mental health. The ICL submitted, and I find, that the evidence before the Court is that X had, by the conclusion of the trial, spent regular, significant and substantial time with the father; had not suffered the same degree of dysregulated emotions, impulsivity, unpredictability and moodiness as noted earlier in time by Ms H; had not required ongoing mental health intervention; and had reported, and indeed actual, improved peer relationships and performance at her school. I accept Ms H’s opinion that such improvements in X’s mental health functioning have come about directly as a result of her increased regular time with the father. In my view that time should be further increased to a position of equality of time between her parents’ households.