Pointer & Cheadle (No 2)

Case [2023] FedCFamC1F 602

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

File number(s): SYC 7392 of 2013
Judgment of: HARPER J
Date of judgment: 21 July 2023
Catchwords:  FAMILY LAW – PARENTING PROCEEDINGS – Where the child has been the subject of parenting proceedings for almost the entirety of her life – Parenting orders were made on a final basis in March 2020 (“2020 orders”) – Where the Court found the mother was an unacceptable risk of harm to the child – Where 2020 orders changed the residence of the child to the father and allocated him sole parental responsibility – 2020 orders were upheld on appeal – Where mother commenced fresh proceedings on 10 June 2021 seeking that the child live with her and orders for sole parental responsibility – Where father seeks orders that the child live with him, he hold sole parental responsibility and the child spend no time and has no communication with the mother – Where neither party pressed for the application of the principles in Rice and Asplund (1979) FLC 90-725 – Where Court itself is satisfied there has been a material change in circumstances sufficient to warrant consideration of the parties’ applications – Where the child has a loving relationship with both parents – Where both relationships are characterised by challenges – Where child has displayed concerning behaviour in the care of the father and stepmother – Where the mother argues the child’s behaviour is symptomatic of emotional and physical abuse and neglect of the child by the father – Mother alleges father is an unacceptable risk of harm to the child –Where Court finds that the father and stepmother’s response to the child’s dysregulated behaviour have been at time problematic – Where the father and stepmother have shown insight into their actions and have proactively sought to remedy their parenting deficits – Where the Court is satisfied the father is not an unacceptable risk of harm to the child – Where conversely, the mother has demonstrated limited insight and has been resistant to therapeutic intervention aimed at supporting her parenting – Where the mother’s time with the child has fluctuated between unsupervised and supervised time – Where the mother has demonstrated an inability to comply with Court orders she does not agree with – Where the father has made four Applications in a Proceeding seeking recovery of the child – Where the Court is persuaded that the mother remains an unacceptable risk of psychological harm to the child – Where the Court finds that the mother has persistently sought to intrude into the parenting arrangements managed by the father and manipulated the child in emotionally abusive ways – Where Court ordered therapeutic intervention has not ameliorated the risk of harm to the child posed by the mother – Where the Court does not find that a regime of no time with the mother would be in the best interests of the child – Where the Court…

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AGLC
Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Case
[2023] FedCFamC1F 602
Decision Date

CaseChat Overview and Summary

In the case of Pointer & Cheadle (No 2), the Family Court of Australia was tasked with determining variations to existing parenting orders concerning the child, [X]. The primary dispute involved the allocation of time between the parents and the conditions under which the child would spend time with each of them. Both parents sought variations of the 2020 orders, focusing on the evolving circumstances since the initial ruling. The legal issues before the court included whether there had been a material change in circumstances justifying the variations and whether the proposed parenting orders were in the best interests of the child.

The court first examined whether a material change in circumstances had occurred since the 2020 orders, considering the evolving dynamics between the parents and the child. The judge found that significant changes had indeed taken place, including the mother’s inconsistent and sometimes unsafe behaviour, the child’s emotional and behavioural challenges, and the father’s relocation plans. These changes warranted a re-evaluation of the existing orders. The court also considered the applicability of the principles in Rice and Asplund and the requirement for a material change in circumstances to justify variations to parenting orders, as confirmed in Halloran & Keats.

After weighing the evidence and expert opinions, the court concluded that the best interests of the child were best served by maintaining the current arrangements, with modifications to ensure the child’s safety and well-being. The court determined that the mother’s supervised contact should remain limited due to concerns about her behaviour and its impact on the child. The court also endorsed the father's relocation to Brisbane, considering it potentially protective for the child. The final orders reflected these findings, emphasizing the need for stability, safety, and the child’s emotional and psychological needs. The court refrained from making any orders regarding costs, leaving the door open for future applications by the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the commencement of the final hearing before me on 14 February 2023, the parties both sought variations of the 2020 orders and in those circumstances, neither party pressed for the application of the principles in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), even though this issue had been raised at an earlier stage of the proceedings. Recently, in Halloran & Keats [2023] FedCFamC1A 56 at [28] Austin J, sitting as the Full Court, confirmed that a parenting order purporting to limit the application of the principles in Rice and Asplund may be beyond power, and while s 65D(2) of the Act expressly envisages the need to vary parenting orders, “whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained”, citing Poisat & Poisat (2014) FLC 93-597, at [13]. Independently of the parties, as the discussion which follows will disclose, I am satisfied that there has been a material change of circumstance since the 2020 orders, sufficient to warrant the parties competing applications being entertained.SHORT BACKGROUND The father was born in 1979 and is currently 43 years of age. He is currently employed as an academic. The mother was born in 1977 in Country H and is currently 45 years of age. She immigrated to Australia in 2008. The mother is employed on a full time basis as a public servant. The parties commenced their relationship in 2010 and were married in 2012. The child was born in 2012. The parties divorced in 2015. The father married his current wife, Ms G (“stepmother”) in 2018. Their son, ZZ, was born in 2020. The relevant background in this matter, substantially up until 26 March 2020, is set out in Pointer & Cheadle at [12]–[72]. I incorporate those details here and I will not repeat them save to the extent necessary for the purpose of this judgment. Events following the 2020 orders It is nonetheless necessary to recount in some detail the events which have transpired since the 2020 orders. Those orders required the mother to deliver the child to the father for a change of residence on 28 April 2020. The mother retained the child until 13 May 2020, in contravention, as she argued it was unsafe for her to live with the father due to the risk of COVID-19. The child relocated to live with the father on 13 May 2020. In summary, the time the mother spent with the child since the 2020 orders has ranged from unsupervised time to limited supervised time as follows:(1)13 May 2020 until 20 November 2020 the child spent one night per fortnight with the mother;(2)20 November 2020 until 24 April 2021 the child spent time with the mother each alternate weekend from after school on Friday until before school on Monday, half the school holidays during the short holidays and two weeks in the long holidays;(3)25 April 2021 until 23 June 2021 the child spent time with the mother unsupervised for one night a fortnight;(4)24 June 2021 until 1 July 2021 the child spent five nights per fortnight with the mother;(5)2 July 2021 until 25 September 2021 the child lived with the mother and spent occasional time with the father;(6)29 September 2021 until 2 June 2022 the mother’s time with the child was limited to three hours of supervised time per fortnight;(7)3 June 2022 until 7 October 2022 the mother spent time with the child from after school Friday until the commencement of school on Monday with the child in week one and on Thursday evening from the conclusion of school until 6.30 pm in the alternate week; and(8)8 October 2022 until present the mother’s time with the child has been limited to three hours of supervised contact per fortnight.

Evidence

Evidence Before The Court

Dr BA made recommendations at paragraph 250 of the Family Report to the following effect:1. The maintenance of sole parental responsibility and residency with the father.2. The contact with the mother should be limited given her inability to act in the child's best interests. Her lack of insight and inability to alter her behaviour will continue to undermine the security of the child’s placement in the father's home, undermining his capacity to provide safe and effective care and priorities her developmental needs. As there was no indication that this would change, monthly supervised visits would be an appropriate arrangement for the mother's ongoing contact with the child until the age of 16.3. Both parents should undertake to not denigrate the other parent or members of their extended families.4. The child should attend a single GP. I note that the mother had now withdrawn her complaint and supports [Dr N] maintaining this therapeutic role. The current therapeutic intervention for [X] and the family should continue as negotiated between the parties and their therapeutic team.5. This assessment identified the importance of supporting a stable base for the child in her father's care. The proposed move to Brisbane with the father could be protective for the child by removing her from the direct influence of her mother. The child’s communication with her mother was identified to have fuelled her oppositionality and explosive behaviour. I would thus respectively recommend that Orders should be made which accommodate the father's relocation to Brisbane should he pursue this plan.OTHER EVIDENCE The mother also relied upon evidence by Ms BK, the mother’s treating psychologist. Ms BK produced a report dated 9 February 2023 contained in an affidavit. Ms BK was cross-examined. The stepmother gave evidence and was cross-examined. THE CHILD The child has attended the following clinicians and support persons:(1)Dr N, General Practitioner at T Medical Centre;(2)Dr BL, Clinical Psychologist at OO Group since October 2020; (3)Dr WW, BM Mental Health Service, from December 2020 to November 2021;(4)Ms BN, BO Services from January 2022 until August 2022;(5)Ms BP, Dietician at U Medical Centre;(6)Dr M, paediatrician; and(7)NSW Police Youth Liaison Officer BR, who visited the father’s residence between September 2021 until early 2022, to engage with and provide proactive support for the child. When in the mother’s care the child has attended upon Dr SS and Dr BS at BT Medical Centre. Dr WW of BM Mental Health Service diagnosed the child with anxiety, social anxiety and a behavioural disorder in September 2021. The father has deposed that the child has experienced considerable difficulty with emotional regulation while in his care. He gave evidence that the child has had “meltdowns” in response to comparatively minor triggers, such as difficulty choosing breakfast, not wanting to shower or brush her hair among other incidents. This has resulted in instances of the child screaming for extended periods, breaking furniture, banging doors and breaking mirrors and a glass sliding door. At times the child has physically hit the father as well as picking up an axe and a hammer. The father, stepmother, and third parties have called police and emergency services for assistance. The child is currently on a waitlist for an evaluation for autism, though it has been noted that it is unlikely that she will meet the necessary requirements for a formal diagnosis.

Decision

Reasons for decision

Both parents made a standard application for costs in their pleadings. Other than as already explained above, no claims or submissions were made about costs generally of the proceedings. The matters the subject of this judgment are clearly complex. I will make no order as to costs in this judgment, other than in respect of the ICL’s costs. I do not intend by this to preclude either party from making application in the appropriate form supported by affidavit, however, nor do I invite any such application.CONCLUSION For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

Ratio Decidendi

Legal Principle Established

The best interests of the child are the paramount consideration when making any parenting order (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act, although discussion of each consideration is not necessary (Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78]). I have considered each of matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the parties and the ICL conducted the final hearing.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 s 60CC(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):(1)A “meaningful relationship” is one which is “important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405 (“McCall”)); (2)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(3)The legislation aspires to promote a meaningful relationship, not an optimal relationship (M & S (2007) FLC 93-313; Godfrey & Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407). At present, the child has a meaningful relationship with both parents, although with both it is characterised by difficulties. Dr BA said that while, theoretically, it would be in the child’s best interests to have a significant and substantive relationship with both parents, such an outcome was probably impossible, because of concerns about the nature of the mother’s behaviour (Transcript 6 April 2023, p.35 lines 40–45). So the difficult question is the extent to which the child would benefit from a meaningful relationship with both parents prospectively and how this may be achieved. The answer to these questions largely depends upon the conclusions to be reached in relation to the next primary consideration. Section 60CC(2)(b), “abuse” and “family violence” Both parents have raised concerns with respect the child being at risk of abuse or exposed to family violence in the care of the other parent. It is necessary here to set out some statutory definitions. The terms “abuse” (see s 4 of the Act) and “family violence” (see s 4AB(1) of the Act) are defined as follows:abuse, in relation to a child, means:(a) an assault, including a sexual assault, of the child; or(b) …(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or(d) serious neglect of the child.family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.