Robb & Harper - [2022] FedCFamC2F 1047

Federal Circuit and Family Court of Australia
(DIVISION 2)
Robb & Harper [2022] FedCFamC2F 1047

File number(s): MLC 990 of 2011

Judgment of: JUDGE GLASS

Date of judgment: 11 August 2022

Catchwords: FAMILY LAW – CHILDREN – RESIDENCE - child’s best interests – where there is a lack of parental cooperation and communication – non-compliance with previous consent orders – where the child has been exposed to parental conflict – where experts opine that child’s relationship with the mother is enmeshed and the mother is incapable of supporting child’s relationship with the father – cognitive dissonance by child – change of residency

Legislation:
Family Law Act 1975 (Cth), Part VII, s 4AB, 60B, 60CA, 61DA, 65DAA, 65DAC, 69ZN ss 4(1), 60CC(2), 60CC(2A), 61DA(4)

Evidence Act 1995 (Cth) s 140

Cases cited:
Kramer and Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270

M v M (1988) 166 CLR 69 at 76

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

Lennon & Lennon [2011] FamCA 571

Division: Division 2 Family Law

Number of paragraphs: 194

Date of last submission/s: 5 August 2022

Date of hearing: 1-5 August 2022

Place: Melbourne

Counsel for the Applicant: Ms Agresta

Solicitor for the Applicant: Leslie Family Law

The Respondent in person: Ms Harper

Counsel for the Independent Children's Lawyer: Dr Alexander

Solicitor for the Independent Children's Lawyer: Macgregor Solicitors
ORDERS

MLC 990 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ROBB

Applicant

AND:
MS HARPER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE GLASS

DATE OF ORDER:

11 AUGUST 2022

THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Father have sole parental responsibility for the child X born in 2010 (“X”).
3.X live with the Father.
4.The parties and X continue to attend upon Ms B or her nominee (“therapist”) for the purposes of reportable family therapy with a specific focus on rebuilding the relationship between X and the Father, with the parties to share the costs of that work as follows:
(a)The Father to pay the costs of his sessions and X’s sessions;
(b)The Mother to pay the costs of her sessions; and
(c)The parties to share equally in the costs of any Report;

and the parties shall follow all directions of the therapist in relation to therapy, including but not limited to X’s attendance and treatment, including engagement with any alternate or additional treaters.
5.The parties be at liberty to provide the therapist with:
(a)copies of the Court documents filed in these proceedings since 1 April 2019 including the Affidavit of Dr C dated 25 October 2019;
(b)the Family Reports of Mr D dated 22 February 2021 and 6 April 2021;
(c)the Child Impact Report of Ms E dated 8 April 2022;
(d)the section 69ZW Report prepared by Child Protection and dated 1 May 2022;
(e)the Family Report of Ms F dated 6 June 2022; and
(f)all Orders made in these proceedings since 1 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robb & Harper

Details

AGLC: Robb & Harper [2022] FedCFamC2F 1047
Case: [2022] FedCFamC2F 1047
Decision Date

CaseChat Overview and Summary

This case concerns a dispute between the parents of a child, X, regarding her residence and contact with each of them. The proceedings were heard by Judge Glass, who concluded that it was in X's best interests for her to live primarily with her father and to spend time with her mother on alternate weekends, for half school holiday periods, and on special occasions. The father proposed that X live with him, spend no time with the mother for a period of approximately 10 weeks, and then have her time with the mother be gradually re-introduced. The mother proposed that X continue to live with her and spend no time with the father. The Independent Children's Lawyer supported the father's proposal but suggested some amendments. Judge Glass found that the mother's attitude and conduct had deprived X of the possibility of maintaining a relationship with her father, and that such a relationship was necessary for X's social and identity development and to prevent long term mental health risks. The mother's negative attitude towards the father was unjustified and lacked focus on X's best interests. The father's capacity to provide for X's emotional needs was greater than the mother's, and he had a greater capacity to provide for her emotional needs. X needed to be relieved of the substantial burden of prioritising her mother's emotional needs before her own. The orders made reflected the recommendation that X have approximately two months during which she does not see her mother, and the injunctive relief sought was considered appropriate to maximise the prospect of X successfully transitioning to her father's care and to minimise X's future exposure to conflict between her parents.

The court considered the statutory considerations under Part VII of the Family Law Act 1975 (Cth), including the paramount consideration of X's best interests, the need to protect X from physical or psychological harm, any views expressed by X, and the nature of X's relationship with each of her parents. The court found that there was no unacceptable risk of harm to X by spending time or indeed, living with her father. The court also found that the mother's attitude and conduct had deprived X of the possibility of maintaining a relationship with her father, and that such a relationship was necessary for X's social and identity development and to prevent long term mental health risks. The court rejected the mother's allegations of family violence and abuse, finding that they were inconsistent with her earlier consent to arrangements for X to spend time with her father. The court also found that the mother's current attitude and conduct were inconsistent with her proposal to be bound by an order providing that any contact between X and her father be initiated by X and established in writing.

The court found that it was not in X's best interests for her parents to have equal shared parental responsibility for her, and that it was not in her best interests for her parents to have equal shared parental responsibility for her. The court found that it was in X's best interests for her primary residential carer to be able to make decisions for her, unimpeded by the other parent. The court found that it was in X's best interests to live primarily with her father and to spend time with her mother on alternate weekends, for half school holiday periods, and on special occasions. The court found that the father had a greater capacity to provide for X's emotional needs than the mother, and that X needed to be relieved of the substantial burden of prioritising her mother's emotional needs before her own.

The court made orders that X live with her father, spend no time with her mother for a period of approximately 10 weeks, and then have her time with her mother be gradually re-introduced. The court also made orders that the parties comply with all reasonable directions of the changeover contact centre, that the mother be restrained from attending at or proximate to the father's home save with the express written consent of the father, and that the parties be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and from permitting any other person so to do. The court also made orders that the parties be permitted to attend all school events relating to X normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.

Orders