Reading & Edwin
[2023] FedCFamC1F 542
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Reading & Edwin [2023] FedCFamC1F 542
File number(s): BRC 7266 of 2021 Judgment of: BAUMANN J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – CHILDREN – Where the parents have high conflict communication styles – Where the child has serious and ongoing medical conditions requiring a higher level of care – Where the mother has had limited contact with the child for the duration of the child’s life – Where the child becomes distressed at the prospects of spending extended time with the mother – Where the father seeks that the child remain living with him and have no contact with the mother –Final Orders made for the child to remain living with the father – Mother permitted to send cards and gifts Legislation: Family Law Act 1975 (Cth) ss 65L, 102NA Cases cited: Vallans & Vallans (2019) 60 Fam LR 193 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 27 April 2023 Place: Brisbane Counsel for the Applicant: Mr J Cahill Solicitor for the Applicant: Stolar Law Pty Ltd Solicitor for the Respondent: Litigant in person Counsel for the Independent Childrens Lawyer: Mr J Linklater-Steele Solicitor for the Independent Children’s Lawyer: ELR Law ORDERS
BRC 7266 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS READING
Applicant
AND: MR EDWIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
27 APRIL 2023
THE COURT ORDERS:
1.That the father have sole parental responsibility for the major long term issues of the child, X born 2012 (“the child”).
2.That the child live with the father.
3.That the child spend time and communicate with the mother at all times the child expresses a wish to do so, and the father will facilitate that request.
4.That the mother be at liberty to send cards and gifts to the child on his birthday and for Christmas to the postal address provided by the father under Order 7.
5.That the father advise the mother, by contacting the mother’s sister, Ms B, by mobile on …, if the child suffers a serious injury, condition or illness requiring hospitalisation, within twenty four (24) hours of such hospitalisation.
6.That both parents keep each other informed of a current contact postal address.
7.That neither parent to expose the child to family violence.
8.That pursuant to s 121 of the Family Law Act 1975 (Cth), the Independent Children’s Lawyer has leave to provide to the Department of Children, Youth Justice and Multicultural Affairs the:
(a)family report prepared by Ms C dated 6 May 2022;
(b)s 65L report prepared by Ms C dated 30 November 2021; and
(c)these Orders and the Reasons for Judgment delivered today.
9.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Reading & Edwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X, born in 2012, is now 11 years of age. He is a child with some vulnerabilities – at least the diagnosis almost from birth of a condition, which carries with it significant responsibilities to maintain his diet and general health so as not to create a catastrophic event for him. He has, for other reasons which I will briefly deal with, been required to undertake, for his emotional support, counselling. Although the parties today have generally reached agreement on orders - and I indicate in that regard I accept, as the transcript will reveal, that Counsel for the mother would, no doubt, have been required to explain to the mother the effect of the orders, which she agrees with and proposed by the Independent Children’s Lawyer, do not provide a defined and prescribed order for her to spend time with her son.
Nonetheless, the issues which I need to rule on are quite narrow but important. By way of background, the parties were in a volatile relationship from their early 20s in 2011 until, it seems, final separation in August 2016. The difficulties in the mother’s then household with a person named Mr D, which she has described in her affidavit and in reports to the family report writer, were such that the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) feared for the safety of X and removed the child from her care in late 2016 or early 2017. It appears the mother had been the victim of a highly abusive relationship with Mr D. It is also clear from all the evidence that the mother has had continuing issues with the use of illicit substances. That is continuing, on the mother’s own evidence which is, in her most recent affidavit, using marijuana for sleep and using an illicit substance as recently as January this year.
The result of the Department’s intervention when the child, X, was possibly as young as four or five years of age has meant that the child has been cared for by the father exclusively and with little input at all or contact with the mother. I am not able to make findings on every issue about why that occurred other than it seems clear that the father took on the responsibility, and he has managed to do so effectively notwithstanding his own criminal history and issues as to his aggressive behaviour reflected in some of the police material I have read, as recently as at a medical appointment where he reacted to not being properly respected, in his view, which he has told me from the bar table he is taking further. Be that as it may, there is no evidence that, despite the Department being aware of this child, that they have intervened in the future care of X in any way since the child came into the father’s care. That the Department is well aware of this family is obvious.
Even though the mother makes complaints about the father’s behaviour towards her, and from late 2019 relocating with the child to an address unknown to her, preventing any time occurring, the mother by 2019 had formed a new relationship with a Mr E. I know nothing about Mr E. He was not available for interviews for the family report and there is no evidence before me from him, however that relationship is intact, it would seem. The mother would suggest, by inference, in her material that this is a happier relationship with her than any of her prior relationships with Mr D or the father in this case. That union created a child, F, who was born in 2019. The mother accepts and gives evidence that the child was placed in care immediately upon his birth and has been in care ever since. I cannot expect to understand fully how a second child being, effectively, in a situation where they had no time with this mother has affected her, but I cannot imagine it could be other than distressing. I am not here to make orders about that child. I should acknowledge that the father himself has had other issues to deal with apart from his own health. In a relationship he was in, that also created a child; he suffered the grief and loss of that child in that relationship. Overarching both of these parents’ development have been clearly highly compromised parenting which they received during parts of their early childhood and life.
In June 2021, the mother brought an Application in which she sought orders that the child, X, spend each alternate weekend and half of school holidays with her. She acknowledged, by her interim orders sought in that Application, that there would be a need to develop the relationship with the child, seeing, at that stage, she had spent no time with the child for some years.
Despite the endeavours of Registrars, particularly a Senior Judicial Registrar in the Evatt List, and the, no doubt, continued assistance, as I have received today, from the Independent Children’s Lawyer first appointed in June 2021, as I will indicate for the sake of background to these Reasons, all attempts to facilitate the child, X, spending any time with the mother since the mother commenced proceedings in 2021, nearly two years ago, have not proved successful. Some background to why that has been a difficulty, I think, is clearly identified by two reports before me which I have read and considered.
On 30 November 2021 Family Consultant, Ms C, prepared a report as a result of an Order made by the Senior Judicial Registrar which required the child to come to the Court, pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”), for a supervised visit. That report is before me and relied upon by the Independent Children’s Lawyer. That report identified, and in my view it is the only independent evidence of, views expressed by the child.
At paragraphs 28 to 37 of the child inclusive report of Mr G of 19 October 2021, the child expressed some reservations about spending time with the mother. I have taken those comments into account. Subsequently, as I say, the s 65L reported dated 30 November 2021 from Ms C caused Ms C to make certain observations. X, at that stage ultimately agreed to spend time with the mother on the condition to end it when he wished to do so.
At paragraph 9 of that report, Ms C observed that although the mother attempted to make it clear to the child how much, I infer, she loved him and wished to spend time with him and misses him, Ms C then identified that:
it made [X] upset. I observed his face to go red, he stood up and started saying he is unsafe. [X] was emotionally heightened and asked to go back to his father. [X] started passing back and forth. I ended the observation after 2 minutes and I walked him over to his father. [X] told his father that I made him see the mother. [X] was swearing and kicking furniture in the room.
At paragraph 10 of the s 65L report it was identified that “[a]fter [X] left the room, the mother became upset, appeared distressed and was crying. She made statements about the father not supporting her relationship with [X]”.
This observation by the mother was supported by Ms C in her “impression/evaluation” summarised at paragraphs 11 to 14. Importantly, even as far back as November 2021, Ms C said at paragraph 14:
It seems unlikely that [X] would feel comfortable seeing his mother in the future considering his father’s openly negative view about [X’s] spending time with her. [X] has not seen his mother in 4.5 years and the narrative about her care of him, connection, choices and his experiences in her care are likely to be a reflection of what his father told him over the years. [X] may not wish to upset his father and demonstrates loyalty by rejecting his mother. He does not seem to have the emotional permission from his father to explore his connection with her. [X] might live in fear that his mother will hurt him and does not love him, which can manifest in negative implication on his social and emotional development about relationships, view of the world, of women unable to form safe connections with peers or in intimate relationship in the future.
With the benefit of that report and the concerning remarks made, on 2 December 2021 the Senior Judicial Registrar ordered the preparation of a family report. The Senior Judicial Registrar also directed the Independent Children’s Lawyer to provide to the Department details of that report, no doubt concerned for X. Earlier a Registrar had, in June 2021, made an Order inviting the Department to intervene in this matter under s 91B of the Act. The Department, being well aware of that Order and even though it has been provided with more information by the Independent Children’s Lawyer and may, as the documents tendered by the Independent Children’s Lawyer today make clear, have been aware of the child’s circumstances, the Department has elected not to intervene in this matter.
The family report interviews were timed to commence with, again, Ms C, on 29 March 2022. As the report makes clear, Ms C interviewed the mother but was not successful in interviewing the father. The father chose not to bring the child to the interviews. The report speaks for itself. Ms C took the view that the father, who presented to her as agitated and demanded why his appointment was not started at the time at, presumably, he expected it to occur, raised a number of criticisms of the process and Ms C, in particular. As I say, paragraphs 32 to 37 of the family report speak for themselves. The father, although he was critical of Ms C from the bar table, was not required to cross-examine Ms C, and little purpose would have been served, in him doing so.
It is, however, I think relevant to observe that at paragraph 37 Ms C opined that:
Due to father’s body language and what impressed as the use of non-verbal intimidation such as leaning forward, shaking his head, what appeared like clenching his fists under the table due to the observable tension in his arms; I assessed the situation as unsafe and volatile and did not feel it was appropriate to attempt to de‑escalate the father. I informed the father of it being his choice to participate and that he could end the interview. The father then stood up and walked out. After leaving the interview room, the father returned to the counter to let me know that he was recording the conversation.
The father today has continued to raise concerns about the process and what he felt were the effects on his son of the process. Perhaps not surprisingly, a Registrar decided on 2 June 2022 to transfer this proceedings to Division 1 of the Federal Circuit and Family Court of Australia, and it first came into my list on 16 June 2022. I do not propose to set out in these ex tempore Reasons the effect of the events on 16 June 2022, 29 September 2022 (when I ordered, consistent with a proposal of the Independent Children’s Lawyer, that X spend time with the mother, as recommended by the family report, at the H Contact Centre); 30 November 2022 and finally 14 December 2022.
At one stage, so concerned was I with the father’s failure to comply with Orders, I made it clear that his failure to appear before the Court could expose him to possible charges of contempt in the face of the Court. It caused him to appear before me on 14 December 2022. That was the first occasion I had seen the father and seen the interaction between the father and the mother, who at that stage were both unrepresented. I can recall the interaction between them. Sadly, Ms Rayment, the Independent Children’s Lawyer, was in the middle. The parties showed unrestrained emotional outbursts, inappropriate comments, both directed to the Court and to each other, particularly, and it was a very volatile situation.
I made orders that s 102NA of the Act would apply which would have allowed both parties to have the benefit of a publicly-funded lawyer for a trial, which I listed to commence today. The mother took advantage of that opportunity and retained, through the Legal Aid Cross‑Examination Scheme, an independent lawyer who has briefed Mr Cahill of Counsel and who has appeared today. As Exhibit 1 identifies that the father chose not to, for reasons which are not totally clear to me but he says is associated with the pressures that he has been under managing X’s behaviour and changes, take up the opportunity to apply for legal aid and have a lawyer appear today.
I made it clear to the father this morning, he not having in any way filed any new material, that he could not cross-examine the mother as that was the ban that operates by virtual of s 102NA of the Act. As it has turned out, cross-examination of the parties (or the report writer) has not been required by anybody. I will now deal with the remaining issues that require judicial determination.
The reason I have given this history is to identify how difficult it is for X to be able to have a meaningful relationship with both of his parents. The mother has not ever sought that the child live with her. She has made it clear that her hope is that the child have the opportunity to have a relationship with her. No doubt, I infer, at some level she would like X to have, ultimately, a relation with his half-brother, F, who is now three years of age. The father, for reasons that he has expressed in his initial affidavit in 2021 and has, at times in an unrestrained way, highly emotionally and, no doubt, with great determination, believes that any relationship between the child and the mother is likely to be destructive of this boy.
The principles that children should have the opportunity to form a meaningful relationship with their parents and people significant to their care, welfare and development is not always able to be achieved. In this case, in my view, we have reached the stage in X’s best interests, which is the paramount but not only consideration, that he is entitled to reach the end of his infancy without further conflict between his parents. As to what he chooses, when he is an adult, to do with his relationships will be a matter for him. Ultimately, the Independent Children’s Lawyer overnight came to a form of order that she proposed, with the benefit of, no doubt, advice from Mr Linklater-Steele of Counsel, to bring this matter to an end as this child requires and deserves. The transcript will identify the issues that remain.
One issue is also enlivened because I propose to make an order that the father have sole parental responsibility for major long-term decisions. The mother concedes this in a practical sense. I am conscious, of course, of the statements of principle, including from Kent J in Vallans & Vallans (2019) 60 Fam LR 193, that there needs to be a principled reason to move from the presumption of equal shared parental responsibility. In my view, the evidence in this case identifies no capacity for any meaningful communication between these parents can be achieved and that with a child with the vulnerabilities X has, there needs to be a parent who makes major decisions, and as the child, the mother concedes, will live with the father that should be the father.
The father opposes the child receiving from the mother gifts at his birthday or Christmas. I propose to order that he does receive them. I, of course, do not know how he will treat such gifts. He may, in the father’s home, choose to destroy them, to throw them in the bin, or not even open them. I have no way of knowing, but as Mr Linklater-Steele, I think properly identified, the child is entitled to know, as the mother has demonstrated, in my view, although she has some compromises in her capacity, clearly, on the evidence, that his biological mother cares about him and loves him and recognises his importance to her and, hopefully, her importance to him at events in our calendar which are consistent with the child expecting that affirmation. As to how the mother is to get these cards and gifts on these two occasions a year is a problem, and it is a problem which runs from the second issue where there was a dispute, namely, the extent to which the mother is entitled to know about the ongoing medical challenges of this child.
The nature of the child’s condition, at least medically if not psychologically, clearly make him vulnerable. His diet must be monitored, the father says, daily. It involves a significant amount of attention. I am satisfied the father is in the position to continue to manage that as he has, on the evidence, apparently done so to date since the child came into his care. However, it has to be acknowledged, in reality, that even with the best of attention and care, a child with these levels of vulnerability could suffer a serious medical event.
It is not about the mother having the opportunity to blame or criticise the father, but rather if there is a serious medical event it is in the best interests of the child I order that the father inform the mother of that event. The father raises a concern that the mother, if she has access to his mobile phone, could use it as a basis for harassing or intimidating him. The evidence, untested, does not go so far as to establish that, but I would not be heard to say that it is not a possibility in view of what I have seen demonstrated in my Court about their behaviour, however, at some point in time parents have to raise their abilities to the level of putting their child’s interests first, and although in a perfect environment a parent, even one not seeing a child regularly, should have the benefit of understanding the child’s development at school and medically and otherwise.
I am satisfied that, weighing up the need to make Orders which are least likely to lead to further proceedings with what I believe to be an Order in the child’s best interests, the father’s obligation to keep the mother informed should only be limited, by Court order, to major medical events where the child’s health is critical, he is hospitalised or his life is at risk. I will shape an order that reflects that. Such an order, of course, can be of no effect unless the father has someone to tell. It may well be, and hopefully, for X, there will never be an event that reaches that level of gravity in his life as a child. Mr Cahill, on behalf of the mother, accepting the difficulties in the parties sharing information about their mobile phones (which I accept), identified, through the mother, the mother’s sister as a person to whom the father could send a message about X. Whilst I do not have the consent of Ms B to be the subject of that obligation of receiving a message, I am satisfied at least on the evidence and from the way in which the mother feels she is supported by her sister, as reflected in other material I have before me, that I should make an order in those terms.
For those reasons, the order which will be pronounced today in relation to those issues will reflect the Reasons that I have given orally. In my view, they are, in totality, orders in the best interests of the child in this very difficult situation.
I am satisfied that to the extent required I have identified aspects of the matter not otherwise agreed which might touch upon the primary and additional considerations in the Act. The Independent Children’s Lawyer shall be discharged with the thanks of the Court, noting that the Independent Children’s Lawyer will have the power to provide a copy of these Reasons and the other material set out in the Order to the Department.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 July 2023
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