Sharlow & Nance

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Sharlow & Nance [2021] FCCA 714

File number(s): NCC 1605 of 2020
Judgment of: JUDGE BECKHOUSE
Date of judgment: 25 March 2021
Catchwords: FAMILY LAW- interim parenting - where a shared care arrangement is sought by the father – where one child has autism spectrum disorder
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 63B, 63C, 65DAB
Cases cited:

 Baghti & Baghti and Ors [2015] FamCAFC 71
Goode v Goode [2006] FamCA 1346

MRR v GR [2010] HCA 4

R v R [2002] FamCA 43
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

Number of paragraphs: 93
Date of last submission/s: 24 March 2021
Date of hearing: 24 March 2021
Place: Newcastle
Solicitor for the Applicant: Ms Beckett of Peter Hamilton and Associates
Solicitor for the Respondent: Mr Collett of Collett Lawyers

ORDERS

NCC 1605 of 2020
BETWEEN:

MS SHARLOW

Applicant
AND:

MR NANCE

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

25 MARCH 2021

THE COURT ORDERS THAT:

1.That X born in 2009 and Y born in 2011 (“the children”), live with the Mother.

2.The children live with the father during school terms as follows:

(a)each alternate week from after school or 3:00pm Friday until before school or 9:00am Wednesday morning.

3.The children live with the father during school holiday periods as follows:

(a)Following the end of terms 1,2 and 3:

(i)On a week about basis with the father’s first week starting on the Friday of the school holiday period when the children were not with the father during the immediate preceding weekend and with changeover taking place afterschool or 3:00pm each Friday thereafter;

(ii)The children shall remain with the parent’s care that they move into on the last Friday of the school holiday period until the first day of school term.

4.The children shall spend time with the parties during the school holiday period following the end of term 4 as follows;

a.From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the even years the children shall be in the care of the mother;

b.From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the odd years the children shall be in the care of the father;

c.From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on Friday the children shall be in the care of the father;

d.From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on the Friday the children shall be in the care of the mother;

e.At the conclusion of the time in the second week block of the Christmas Holidays, the children spend time on a week about basis between the parents with changeover occurring each Friday at 3pm;

5.Notwithstanding any other order the children shall spend time as follows:

a.With the mother from 5.00pm on the Saturday before Mother’s…

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Details
Case
[2021] FCCA 714
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Sharlow (the applicant mother) against Mr Nance (the respondent father) concerning parenting orders for their two children, X (born 2009) and Y (born 2011). The dispute centred on the living arrangements and time the children would spend with each parent, particularly in light of the children's specific needs and the ongoing conflict between the parents. The matter came before Beckhouse J.

The court was required to determine whether the children should live primarily with the mother and spend time with the father in a five-day block each fortnight, or whether a week-about shared care arrangement, as proposed by the father, would be in the children's best interests. The court also considered alternative arrangements, including the father's proposal for the children to spend four nights and one night each fortnight with him, as per a previous parenting agreement.

Beckhouse J applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CC(3), which outlines additional considerations for determining a child's best interests, including the views of the child and the nature of the child's relationship with each parent. The court gave careful consideration to the views of X and Y, noting that Y, who has autism spectrum disorder, expressed a wish for a week-about arrangement to provide him with greater certainty. However, the court was influenced by the Family Consultant's recommendation that a shared care arrangement would be unsuitable for Y at this time, citing his specific needs and the high level of parental conflict. The court also noted the significant impact of parental conflict on the children and expressed a disinclination to make orders for equal time when parties cannot demonstrate functional co-parenting.

Ultimately, Beckhouse J was not satisfied that a shared care arrangement would be in the children's best interests at this interim stage. The court ordered that the children live with the mother and spend time with the father in a five-day block each fortnight, with provisions for FaceTime communication. The court also made detailed orders regarding school holidays, special days, communication between parents, and the management of the children's passports and travel. The matter was adjourned for mention, with liberty for the parties to seek an administrative adjournment if consent orders regarding the appointment of an expert were made.

Orders

Orders of the court

NCC 1605 of 2020

BETWEEN:

MS SHARLOW

Applicant

AND:

MR NANCE

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

25 MARCH 2021

THE COURT ORDERS THAT:

1. That X born in 2009 and Y born in 2011 (“the children”), live with the Mother.

2. The children live with the father during school terms as follows:

(a) each alternate week from after school or 3:00pm Friday until before school or 9:00am Wednesday morning.

3. The children live with the father during school holiday periods as follows:

(a) Following the end of terms 1,2 and 3:

(i) On a week about basis with the father’s first week starting on the Friday of the school holiday period when the children were not with the father during the immediate preceding weekend and with changeover taking place afterschool or 3:00pm each Friday thereafter;

(ii) The children shall remain with the parent’s care that they move into on the last Friday of the school holiday period until the first day of school term.

4. The children shall spend time with the parties during the school holiday period following the end of term 4 as follows;

a. From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the even years the children shall be in the care of the mother;

b. From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the odd years the children shall be in the care of the father;

c. From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on Friday the children shall be in the care of the father;

d. From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on the Friday the children shall be in the care of the mother;

e. At the conclusion of the time in the second week block of the Christmas Holidays, the children spend time on a week about basis between the parents with changeover occurring each Friday at 3pm;

5. Notwithstanding any other order the children shall spend time as follows:

a. With the mother from 5.00pm on the Saturday before Mother’s day until 9.00am or the commencement of school the following day;

b. With the father from 5:00pm on the Saturday before Father’s day until 9:00am or the commencement of school the following day;

c. With the Father on his birthday from 3:00pm or after school (if a weekday) or from 5:00pm the day before his birthday until 5:00pm on the following day (if a weekend or school holiday).

d. With the parent they did not wake up with on the children’s respective birthdays from after school or 3:00pm (if a weekday) for 2.5 hours or from 4:00pm until 8:00pm (of a weekend or school holiday) unless otherwise agreed.

e. With the mother from 9:00am on 23 December until 12:00pm on 25 December in odd numbered years and from 12:00pm on 25 December until 12:00pm on 27 December in even numbered years;

f. With the father from 9:00am on 23 December until 12:00pm on 25 December in odd numbered years and from 12:00pm on 25 December until 12:00pm on 27 December in even numbered years;

g. With the father from 3:00pm or after school on Holy Thursday until 9:00am or before school on Tuesday following Easter Monday in odd numbered years;

h. With the mother from 3:00pm or after school on Holy Thursday until 9:00am or before school on the Tuesday following Easter Monday in even numbered years;

6. The non-care parent to have facetime communication (or similar video application) with the children every Tuesday at 5pm and every Thursday at 5pm with the other parent to facilitate the call, and both parents will allow the children to communicate with the other parent by text message or email.

7. That each party is hereby restrained from denigrating the other party in the presence of or within the hearing of the child and from causing or permitting any other person to do so.

8. Each party is restrained from asking either of the children about their views on their living arrangements or their views about any proposed changes to their living arrangements or allow the children in the presence of any other person doing so.

9. Each party is to notify the other of their residential address, telephone number, within 7 days of the date of these orders and keep the other party advised of any proposed changes to the above details within 14 days of any proposed changes.

10. Each party is to contact the other as soon as reasonably practical upon either of the children being admitted to a hospital or receiving specialist medical attention while the child or children are living with or spending time with them.

11. Each party is at liberty to obtain all relevant medical records and consult either of the children’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

12. Each party is at liberty to attend either of the children’s schools and school functions and obtain all details from either of the children’s schools including reports, newsletters, school photos and these orders are sufficient authority for that purpose.

13. Neither party shall denigrate the other in the presence of either of the children or permit either of the children to remain in the presence of any person doing so.

14. Neither party shall enrol or commit the children to attend any sporting, cultural, educational and religious event that occurs during the time the children are to be with the other party without the party’s consent.

15. The parties shall do all acts and things, including sign all documents necessary to ensure the children’s Passports stay valid, within 7 days of any written request to do so.

16. Each parent is permitted to take the children out of the Commonwealth of Australia during the time they spend with the child.

17. Any party proposing to travel internationally with the children must give the other party at least thirty (30) days' notice of the intended travel setting out the dates of departure and return, flight numbers and details of where the child will be residing outside of the Commonwealth of Australia, unless the travel is due to a family emergency, such as a death of a family member in which case the notice shall be given as soon as reasonably practicable.

18. That the Father hold Y’s passport and the Mother hold X’s passport and upon not less than 14 days prior to any overseas travel, the non-travelling parent will provide the travelling parent with the passport they respectively hold.

19. Within seven (7) days the legal representatives for the Mother provide to the legal representatives of the Father the names of three (3) suitably appropriate experts to undertake a family report including their CVs and the Father within seven (7) days will nominate one from the three (3) proposed.

20. The parties have leave to send to Chambers a proposed Minute concerning the appointment of an expert.

21. The matter is adjourned to 28 May 2021 at 10.30am for mention. The parties have leave to seek an administrative adjournment of that date should consent orders have been made in relation to the appointment of an expert by that time.

NOTATION

A. That both parties agree to contact each other about the children using the Our Family Wizard Application. The parties will only contact each other via phone in emergency situations.

B. The parties agree that the next step in this matter is the appointment of an appropriate single expert.

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.

Background

Background to the litigation

The principal issues for determination by the Court, therefore, are:(a)Should I make an order that the children live primarily with the mother and spend time with the father in a five-day block each fortnight; or(b)Should an order be made that the children live with each parent on a week-about arrangement, as proposed by the father, and if I do not make such an order, should the children spend time with the father in accordance with clause 2.1 of the parenting agreement, which is essentially four nights and one night each fortnight?BACKGROUND There are a few matters that are relevant by way of background to this matter. The applicant mother is Ms Sharlow, who was born in 1967 and is currently aged 54 years. She is a professional. The respondent father, Mr Nance, was born in 1969, and is currently aged 51. He is a health care professional in Town B. The parties commenced living together in or around 2006, and they separated on 13 August 2017. The father has now re-partnered with Ms C. She has a daughter D, aged 11 who lives with Ms C and the father. It would appear that the children enjoy a good relationship with Ms C and D. X has a number of health conditions. Notably, she suffers from a medical condition, which makes her more susceptible to autoimmune diseases and infections. It would appear that the parties work together to ensure that X follows her medication regime and that her condition is appropriately monitored. Y has a number of health problems, including eczema, but of most note is that, on 20 March 2019, he was diagnosed with autism spectrum disorder (ASD), level 1. He consults with psychologist Ms E. Apart from these matters, I note the pleadings are lengthy and focus on the communications between the parties around the parenting of the children. Perhaps somewhat tellingly, despite lengthy affidavits and written submissions, I found it difficult to get any picture of the children’s day-to-day lives; the schools they attend, their progress at school, their interests, how they travel between the two houses, or their extracurricular activities. This is no doubt a reflection on how focused the parents are on the parental conflict. In the mother’s Notice of Risk filed on 20 May 2020, she indicates that there was a history of family violence between the parties. She also makes allegations, from paragraph 67 to 80 in her affidavit. The father has denied this history. In any event, for the purposes of the interim hearing, there is no assertion that the father poses any risk to the children on account of this alleged history and I cannot make any findings about it. THE FATHER’S SUBMISSIONS The father’s case is that the parties entered into a parenting agreement on 30 October 2017 and, since that time, the children have lived with the mother and spent time with the father in accordance with that agreement, save for the period interrupted by COVID-19. In accordance with the parenting agreement, the children currently spend five nights per fortnight, in two blocks, with the father. The mother wishes that the father’s time be converted to a block of five nights. The father objects to this because it would mean that the children do not spend time with him for a block of nine and a half days.

Evidence

Evidence Before The Court

She argues that, on an interim basis, the Court should err on the side of caution, and caution would support making orders for the father to have five nights in a block with the children. THE INDEPENDENT EVIDENCE The children and the parties were seen by a Family Consultant, Dr F on 22 September 2020. The Family Consultant considered whether there were risk factors relevant to this matter. In summary, she concluded:(a)The mother alleges a long-term history of control and intimidation from the father during the relationship and post-separation. This is denied by the father and the issue of family violence needs further consideration and assessment;(b)Whilst there is no Department of Communities and Justice (DCJ) involvement with the family, the parties had raised issues of ongoing disputes regarding medical issues. The mother complained that the father did not follow the prescribed treatment plan by one of the GPs treating the children. Difficulties between the parties regarding medical treatment of the children is a matter raised in the lengthy affidavit material. For example, the mother alleges that the father has indicated he no longer supports their GP, Dr G, seeing the children.(c)The Family Consultant reported that the father referred to the mother as having a diagnosis of borderline personality disorder, and the mother alleged that the father frequently called her crazy to other people.(d)X was interviewed and expressed no concerns or worries about either household. The Family Consultant concluded that the father had certainly spoken to X about the shared care arrangements that were proposed to commence when she began year 7. X reported that she wanted a shared parenting arrangement and thinks it would be good as she could see D and the father more frequently. X, however, thought it would be a significant change for Y and that he would not manage it very well, although he would get used to it. She reported that she wanted the judge to know she would prefer 50-50, but also stated, if not, she would prefer two nights in one week followed by four nights in the second week with the father.(e)The Family Consultant concluded that X has clearly been exposed to the father’s point of view. She is clearly loyal to both parents and loves both parents. (f)Similar to X, Y spoke positively about both parents and both households. He responded positively to D. Notably, Y reported that he gets confused about the current arrangements, and sometimes cannot remember where he is supposed to be. He expressed a specific wish to the judge: “a week with my mum, a week with my dad.”[1] He said, if he spent a week with each parent, he would know that he was going to spend a week with them.(g)In terms of future directions, the report-writer was concerned that a further assessment needs to be made about whether the matter involved controlling and coercive family violence and/or high-level parenting conflict. (h)She formed a conclusion that the matter is extremely unsuitable for a shared care arrangement, based on the parents’ poor communication levels; high-level conflict; possible family violence; and the specific needs of Y, due to his diagnosis of ASD. She noted that the current arrangements may not be suitable for Y, due to his ASD, as it requires a significant number of changeovers between the parents, and he reported confusion about the current time arrangements.(i)The Family Consultant’s limited view was that a five-day block would be more beneficial for Y than the current arrangements. She found that X had the capacity to manage either arrangement reasonably well. [1] Exhibit 2, Child Inclusive Conference memorandum dated 22 September 2020, paragraph 49.THE LAW

Decision

Reasons for decision

There was a significant change of circumstances after the agreement was signed, being the diagnosis of Y with autism. Understandably, the mother seeks to proceed with some caution in those circumstances. CONCLUSION By way of conclusion, the father’s arguments were persuasive. There is a temptation to move the children to a week about arrangement because it will potentially reduce the contact the parties have with each other, settle what I perceive is an ongoing controversy behind much of the parental conflict, and accord with the stated views of the children. But I have to evaluate the proposals and be satisfied that such an outcome would be in the best interests of the children for now. Having thought very carefully about this, and weighed up all the material, I am not satisfied that it would be in the children’s best interests if they were to be placed in a shared care arrangement right now. As I said from the outset, at an interim hearing, I must take a cautious approach, and I am particularly influenced by the following matters:(a)There is no independent evidence before the Court on the impact of a shared care arrangement on Y, apart from the Child Inclusive Conference memorandum, and it makes a clear recommendation that such an arrangement would be unsuitable for Y. Even if I disregard the recommendation, as the father has urged me to do, I’m still left with uncertainty as to what arrangement will work best for Y.(b)The next step in this matter will be the engagement of an expert who can assess a range of matters identified as a concern by the Family Consultant.(c)I am confident that moving to two blocks of five-nine, as proposed by the mother, will at least reduce the need for so many changeovers and the resultant parental communication. This is partly consistent with the wishes of the children, particularly X, who complains about ongoing exposure to the parental conflict, particularly at changeovers. The father’s concerns about the resultant longer gap without the children can be at least ameliorated by an order for FaceTime communication, and I will make an order for this in accordance with the father’s proposed orders.(d)The ongoing parental conflict and constant disagreement and issues raised in their communication is having a detrimental impact on the children. I am not satisfied that an order for equal time will reduce the parental conflict and communication, and it is for this reason that, whilst I take the views of X into account, and have considered them carefully, I will not make an order in accordance with them. Indeed, I suspect, with a final hearing in the future, it may only serve to encourage communication of a point-scoring and grandstanding nature. I would caution the parties to consider, not only the impact of this ongoing, persistent communication and grandstanding about the children on the children, but on the future prospects of a court moving these children to an equal time and equal-shared parental responsibility outcome.(e)Ultimately, this Court is disinclined to make orders for equal time when parties cannot demonstrate effective, or at least functional, levels of co-parenting. The father’s legal representative persuasively argued that, while the communication was a bit clunky or long-winded, these are two highly dedicated parents who have communicated in a way that could be more productive and civil, but have communicated effectively and in the best interests of their children. I am not, on this occasion, satisfied that this is the case. The communication causes stress to the parents which impacts on their parenting, and it is clear that these children are well aware of the parental conflict.(f)I agree with the mother’s submission that the best interests of the children are best served by providing them with more certainty today with orders that provide two clear blocks. If the children settle into this arrangement, and the parental conflict is reduced, it would then be open to the Court to consider moving to a shared care arrangement once the evidence is tested, and with the benefit of some more detailed family assessments.(g)I also observe that, whilst sometimes parents, and, by virtue of their involvement, children, can become fixated on the equality of a shared time arrangement, this is a matter where the children are already spending significant and substantial time with their father, including one half of all school holidays, and there is no doubt the father is actively engaged in every decision and issue that arises. Apart from a stability and fairness argument, at this point in time, there is no other particular benefit that has convinced me that, on an interim basis, these children should move to an equal time arrangement during school terms. (h)There is a dispute about what should happen at the conclusion of the school holiday periods. The mother argues that, for stability, she would prefer the children to return to her on the last Friday of the school holiday period so she can settle them back into a routine. The father, on the other hand, would also like the opportunity to take the children to their first day of school from time to time. It seems that the school holiday orders don’t normally allow for this to occur. I am sympathetic to the father on this and feel it might be remedied by final orders. However, on an interim basis, for the sake of having clear rules and stability, I will make an order that the children remain in the parent’s care that they move into on the last Friday of the school holiday period, until the first day of the school term. But I will not make that order in relation to Christmas, so that the father also has the opportunity, for this coming year at least, pending further order.

Ratio Decidendi

Legal Principle Established

Section 60CC(3) of the Act sets out additional considerations, and reference is now made to those that are relevant to these interim proceedings. ADDITIONAL CONSIDERATIONSSection 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. The weight to be given to the views expressed by a child is as the Court considers appropriate in the circumstances. As was set out in the case of R v R [2000] FamCA 43 at [54] & [44]:There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case. It is undesirable and indeed, impossible to catalogue or confine them in the manner suggested. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial judge, it is apparent that good reason should be shown for doing so. The children were interviewed via Teams which had been set up on the father’s computer. The Family Consultant was satisfied that, during the interview, the children were not influenced by any person. As outlined earlier, X, who is 12, says that she wants a shared care arrangement to commence. Her stated preference was a six night per fortnight arrangement in two blocks. The Family Consultant formed the view that X has clearly been exposed to the father’s point of view. The father told the Family Consultant that X would be hurt and angry if a shared care arrangement did not occur. The Family Consultant was not convinced of this. Y, who is nine, was reported to express a specific wish to spend, “a week with [his] mum and a week with [his] dad”.[2] Of this view, the Family Consultant said:It is strongly suggested he has been exposed to the father’s point of view regarding shared care.[3] [2] Ibid.[3] Ibid, paragraph 50. The legal representative for the mother asked that I also be mindful that this is a high-conflict matter, where the children have been exposed to parental conflict, and this might be reflected in the consensus position they are expressing. The views of the children are important, and I will give weight to them, but this is not a matter where they should be determinative. Section 60CC(3)(b) the nature of the relationship of the child with:(i)Each of the child’s parents; and(ii)Other persons (including any grandparent or other relative of the child); The Family Consultant found that the children love their parents. It is difficult to get a sense of the nature of their relationships with each parent. Very little information about this is contained in the affidavits. The extensive tender bundles focus entirely on the issues arising from a positional parental conflict, highlighted in their communication as well as the health needs of the children. While there are extensive emails on issues, such as the use of social media by the children, they are entirely parent-centric.