Pyper & Carley

Case [2022] FedCFamC1F 404

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pyper & Carley [2022] FedCFamC1F 404

File number: MLC 6288 of 2013
Judgment of: CARTER J
Date of judgment: 3 June 2022
Catchwords: FAMILY LAW – CHILDREN – with whom the children live – best interests of children – previous final orders made – where there is poor parental communication – where there is a lack of parental co-operation – where the parties are unable to promote a positive parenting relationship – allegations of physical and verbal abuse – orders sought for a split sibling relationship – equal shared parental responsibility – where the recommendations made by the Family Consultant are impracticable and not in the child’s best interests – where both parties are capable and loving parents – best interest of children to remain in primary care of mother – orders made.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65DAA

Cases cited:

AMS v AIF [1999] HCA 26

In the Marriage of Hall [1979] FamCA 73

Klein & Klein [2010] FamCAFC 150

Mazorski v Albright [2007] FamCA 520

McCall v Clark [2009] FamCAFC 92

Division: Division 1 First Instance
Number of paragraphs: 201
Date of last submission: 17 May 2022
Date of hearing: 12 – 13 May 2022, 17 May 2022
Place: Melbourne (via Microsoft Teams)
The Applicant: Litigant in person
The Respondent: Litigant in person

ORDERS

MLC 6288 of 2013

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

MS CARLEY

Applicant
AND:

MR PYPER

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

3 JUNE 2022

THE COURT ORDERS THAT:

1.All previous parenting orders in relation to the children X born 2007 (“X”) and Y born 2010 (“Y”) (collectively referred to as “the children”) be discharged.

2.The parents have equal shared parental responsibility for the children.

3.The child X live with and spend time with each parent in accordance with her wishes.

4.The child Y live with the mother.

5.The child Y live with the father during school terms as follows:

(a)from the conclusion of school Wednesday until the commencement of school Monday each alternate weekend (and in the event that Monday is a pupil free day or public holiday then until the commencement of school on Tuesday);

(b)from the conclusion of school Wednesday and to the commencement of school Thursday each alternate week; and

(c)at such other times as is agreed in writing between the parties.

6.In the event the father lives within a 30 minute drive of Y’s school, Y shall live with the father during school terms as follows:

(a)from the conclusion of school Wednesday until the commencement school Monday each alternate weekend (and in the event that Monday is a pupil free day or public holiday then until the commencement of school on Tuesday);

(b)from the conclusion of school Wednesday to the commencement of school Friday each alternative week; and

(c)at such other times as is agreed in…

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AGLC
Pyper & Carley [2022] FedCFamC1F 404
Case
[2022] FedCFamC1F 404
Decision Date

CaseChat Overview and Summary

In the matter of Pyper & Carley, the court was tasked with determining the parenting arrangements for Y, a child of the parties. The mother argued that Y's best interests would be served by remaining in Suburb D, continuing to live with her and her sister, while spending six nights per fortnight with the father. Conversely, the father proposed that Y should live with him and his partner in C Town, attending Q School. The court had to weigh the primary considerations under section 60CC(2) of the Act, which include the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

The court considered the evidence presented by both parties, including their respective parenting styles and the impact of their separation on the children. It was noted that the parents had limited trust in each other, which had at times undermined their parenting and allowed the children to manipulate the situation. The court found that both parents were caring and competent, but their lack of communication had led to the children feeling caught between their parents. The father argued that the mother's punitive parenting style had caused psychological harm to Y, while the mother argued that her relationship with Y would be severed if the father's proposals were implemented.

After considering the evidence, the court concluded that Y's relationship with both parents would continue to be meaningful, even if the father's proposals were adopted. While the time Y spends with her mother would be reduced, she is at an age where frequent interactions are not necessary to maintain a meaningful relationship. The court found that the mother's parenting, while strict, did not amount to abuse or neglect, and therefore did not pose a risk of physical or psychological harm to Y. The court ultimately decided that the father's proposals were in Y's best interests, and ordered that Y live with the father in C Town and attend Q School. The mother was granted specified parenting time, and the parties were ordered to attend a post-separation parenting program.

Orders

Orders of the court

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Background

Background to the litigation

The mother asserts that Y’s best interests will not be met by moving her to C Town, but rather by Y remaining at her school in Suburb D, living with her mother and sister, and spending six nights per fortnight with the father together with time on holidays and special occasions. In the event the father lives within 30 minutes of her home, the mother proposed a shared care arrangement be implemented. BACKGROUND AND PROCEDURAL HISTORY The mother is 48. She works full time as a public servant. She lives in Suburb D with the children in a five bedroom home. The mother’s son Z, aged almost seven, lives in the home as well. Both he and Y attend E School. In addition, the mother cares for an international student billeted in her home. That student and X attend F School where X is in year nine. The mother has an older daughter, Ms G. She is 20 years old and lives separately and independently. The father is 43. He works as an educator at H University on a part time basis. He is currently completing a PhD. He lives with his partner, Ms J (“Ms J”), who is employed by the L University. They currently spend at least part of the working week in a one-bedroom flat owned by Ms J in Suburb K. The father drives Y to and from school in Suburb D from Suburb K when she is in his care. They otherwise spend time at their home in C Town. They do not have children together. The parties were in a relationship from around August 2005 until February 2013. The children were just five and two when their parents separated. The father was by then in a relationship with Ms J. There were parenting and property proceedings before the then Federal Circuit Court in 2013, which resulted in final orders being made by consent on 5 June 2014. Those orders relevantly provided for the parties to have equal shared parental responsibility for the children, and for the children to live with the mother. They were to spend time with the father, initially five nights per fortnight, with such time to increase to six nights per fortnight once Y commenced prep. Holidays were to be shared, and provisions were also made for special occasions. The orders included an order that the parties were to reside within a 45 minute drive of the other unless otherwise agreed in writing between them. As best as I can tell, at the time those final orders were made, the parties were both living in Suburb M. The mother re-partnered post separation with a Mr N (“Mr N”), who is the father of Z. That relationship has also come to an end. The mother said she and Mr N have remained on good terms, and have an amicable parental relationship. They share the care of Z. It seems that by and large the parties were able to work cooperatively until around 2019. At that time, the mother sought the parties attend mediation, which occurred on a handful of occasions. The arrangements for the children remained unchanged. The father told the family report writer that “things changed” in 2020 with the mother’s parenting becoming increasingly punitive. I note, however, that at trial the father also asserted that the mother’s punitive parenting style has been a long standing problem, preceding the COVID-19 pandemic.

Evidence

Evidence Before The Court

At the time the matter was listed before me, it was common ground that X had stopped spending time with the father overnight. She has had some meals with him instead. It is hoped by both parties that she will resume spending overnight time with him, most likely over holiday periods when the father and Ms J will be in C Town. THE EVIDENCE The matter was conducted via Microsoft Teams. There were few technical issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence, and that each of the participants in the hearing was well able to participate. Each of the parties appeared as a litigant in person. I explained the trial process to them at the outset of the proceedings, and it was conducted in a respectful and reasonably focussed manner. I formed an impression that each of the parties was able to adequately present their case, test the evidence of the other party and of the Family Consultant. The mother relied on her affidavits filed 27 March 2021 and 10 May 2022. The father relied on his affidavits filed 13 April 2021, and 4 May 2022. The father had not filed an affidavit from Ms J regarding her capacity to assist with the care of Y, or as to her relationship with Y. At the outset, the father noted the mother relied on an affidavit filed only two days before the hearing commenced. However, he did not seek an adjournment. He was given the opportunity to present any response to that late filed affidavit by way of evidence in chief. It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. Each of the parties presented as caring, concerned and competent parents. They gave their evidence and conducted their cases in a respectful manner, and generally answered questions directly. They both appear to have limited trust in the other parent. Regrettably, each parent has at times accepted at face value complaints the children have made about the other parent. The lack of communication between the parents has meant when the children have made complaints, neither parent contacts the other to discuss what is actually going on. This dynamic has at times undermined the other’s parenting, and enabled the children to effectively “play off” one parent against the other. The father The father proposed that Y live with him and Ms J in their home in C Town, and that she attend Q School where he said she developed good friends in the two weeks she attended there over 12 months ago. It is the father’s evidence that the mother’s parenting style, and her focus on her rights and needs over those of the children, has caused stress, tension and conflict in her home, such that Y’s best interests will be met by her immediately moving into his primary care. He said he and Ms J have a less authoritarian parenting style, and that he is concerned that Y’s conflicts with her mother will only increase as she enters adolescence. He said in his view it is inevitable that Y will come to live in his primary care, and that it is more in Y’s interests that the change occur now, as that will be less disruptive than a change once she has started secondary school.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is also plain that given the parties’ respective residences, or proposed residences, an equal time arrangement is not reasonably practicable. The primary considerations Section 60CC(2) of the Act sets out the two primary considerations I must consider being:(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 those primary considerations, I am required to give greater weight to the need to protect children from harm.Meaningful relationship There is no definition of the word “meaningful” in the Act. In the case of McCall v Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court agreed with the remarks made by her Honour Brown J in the decision of Mazorski v Albright [2007] FamCA 520, that the term is synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour also observed that “meaningful” is a qualitative and not a strictly quantitative adjective. The parties agreed that both children will benefit from having a meaningful relationship with each of the parents. In relation to Y, it is the father’s contention that Y’s relationship with her mother will continue to be significant to her even if their face to face time together is reduced in accordance with his proposals. Indeed, he asserts the relationship will improve if there is a change of residence for Y. The mother contends that her relationship with Y will be severed if the father’s proposals are implemented. I am satisfied that Y’s relationship with both her parents will continue to be of importance to her whichever of the parties’ proposals I adopt. Whilst the father’s proposals would quantitatively reduce the time Y spends in her mother’s care, she is at an age and stage of cognitive development where she does not require frequent interactions with her parents to maintain a meaningful relationship with them. Certainly, the mother/daughter relationship will be impacted if the court implements the proposals advanced by the father. However, not to the extent where the relationship would no longer be meaningful. Need to protect child from physical or psychological harm It is part of the father’s case that the mother’s parenting is causing psychological harm to Y in particular, and that the children are not safe in their mother’s care. The Department provided a s67Z response dated 20 April 2021. That response outlines that there had been one previous report to Child Protection, in November 2020 regarding concerns for X. It was asserted that X was forced out of the car, pushed against a fence and hit by the mother. No action was taken by Child Protection or SOCIT at that time. The Department closed the report at intake phase, noting that the mother had accepted a referral to V Services to assist her with management strategies and parenting support.