Skinner & Laramie
[2022] FedCFamC2F 1094
Federal Circuit and Family Court of Australia
(DIVISION 2)
Skinner & Laramie [2022] FedCFamC2F 1094
File number(s): ADC 4879 of 2021 Judgment of: JUDGE BROWN Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – Interim parenting arrangements for child aged 2 years – nature of interim hearing – parents have poor and mistrustful relationship – assessment of risk – should father’s time with child be supervised – overnight time – issues to be considered – best interests Legislation: Family Law Act 1975 (Cth) at ss 60CC, 61DA, 62G, 65DDAA, 121
Family Law (Fees) Regulations 2012
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 5 July 2022 Place: Adelaide Solicitor for the Applicant: Annells Lawyers Counsel for the Respondent: Ms Miller Solicitor for the Respondent: Angela Ferdinandy ORDERS
ADC 4879 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SKINNER
Applicant
AND: MS LARAMIE
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.The child X born in 2020 live with the mother.
2.The child spend time with the father, to be supervised by the paternal grandmother, as follows:
(a)On 9 & 10 July 2022 from 9.30am to 12.30pm on each day; and
(b)On 23 & 24 July 2022 from 9.30am until 1.30pm on each day; and
(c)On 6 & 7 August 2022 and each alternate weekend thereafter from 9.30am until 3.30pm on each day UPON NOTING such time is also to be supervised by the paternal grandmother SAVE for a period of 2 hours which can occur without her presence to enable the father to engage in a suitable child-related activity outside the paternal grandmother’s residence.
3.This matter be listed for final hearing before Judge Brown on 6, 7 & 8 February 2023 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
4.The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 10 January 2023.
5.The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 24 January 2023.
6.On or before 24 January 2023 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
7.The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.
8.Solicitors for the applicant / respondent / Independent Children’s Lawyer shall forthwith advise the Associate to Judge Brown at [email protected] on becoming aware that the matter has settled or for any other reason will not be proceeding to full hearing on the days allowed.
9.That no later than 7 days prior to the trial date Counsel for each party shall exchange and provide to the Associate to Judge Brown a Case Outline Document, with such Case Outline Document to include the following (divided under headings):
(a)Those documents to be relied upon;
(b)The specific Orders sought;
(c)A short chronology of significant events;
(d)A summary of the issues in dispute between the parties;
(e)A concise summary of argument (with specific reference to any statutory considerations); and
(f)A list of any relevant authorities, together with submissions as to their relevance.
10.Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2022.
11.The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
12.The solicitors for the parties’ forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
13.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
14.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
15.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
16.Further consideration of the matter is otherwise adjourned to 15 November 2022 at 9.30am for mention.
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 a pseudonym Skinner & Laramie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter are being delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read. Some headings have been inserted to assist in this regard.
The proceedings before me which relate to the care of a young child. The child concerned is X, who was born in 2020, X is going to be three years of age in the early part of next year. X’s tender years and her obvious vulnerability which flows from her age are a central factor in the case.
The parties to the proceedings are X's parents, her father, Mr Skinner,[1] and her mother, Ms Laramie.[2] As will be outlined in due course they have very different views as to potential dangers which may befall X over the next period of her life. Regrettably, the significant mistrust between the parties also has the potential to be harmful to her.
[1] Hereinafter referred to as “the father” or “Mr Skinner”.
[2] Hereinafter referred to as “the mother” or “Ms Laramie”.
Mr Skinner, commenced these proceedings on 8 October 2021. It is his position that X on a final basis should continue to live with her mother, who has been X's primary carer since the time of her birth, although he wishes to spend time with her for an extended weekend every fortnight and on special occasions such as Easter, Christmas and X's birthday. When X starts kindy or school, he would also want X to spend half of each of these holidays with him. It is his view that it is appropriate that the parties be conferred with equal shared parental responsibility for X.
By way of background, it is his position that he and Ms Laramie began a relationship on 6 April 2018 and separated in mid-2021. At the present time Mr Skinner lives in the south-east of the state, whilst Ms Laramie and X live in suburban Adelaide. Ms Laramie has two children from an earlier relationship. They are Ms B who was born in 2000 and C who was born in 2014. Both those children live with Ms Laramie.
It is Mr Skinner's case that the parties' relationship was turbulent and difficult. It is his case that the mother has long-standing issues to do with her mental health, and, in effect, he asserts that she is from time to time a compromised parent. Which factor, in his submission, makes it all the more important that he has the best possible relationship with X, although, as I say, he does not wish the child to live predominantly with him.
Ms Laramie responded to the application on 8 November 2021. She has a very different view of the parties' relationship with one another. In brief, it is her position that she was subject to coercive and controlling violence during the parties' relationship which were exacerbated by what she asserts is the father's long-standing alcohol misuse and his abuse of illicit drugs, including in the past methamphetamines.
In these circumstances it is her case that as she is X's undisputed carer and for self-apparent reasons relating to her tender years, issues to do with the protection of X, who must be regarded as a vulnerable child by virtue of her age, must be given priority.
The case, I believe, may have been delayed by the pandemic emergency from time to time. In any event, at an earlier stage, it was agreed that whilst things were so difficult between the parties that the father's time with X be supervised by his mother, Ms D, or her partner. Handovers of the child were to occur at the Suburb E Police Station and the father's time was to be restricted to alternate Saturdays from 9.30am to 3.30pm.[3]
[3] See Order of Judge Brown dated 15 November 2021.
It was also ordered that there be what is called a Child Impact Report, which is a report that is prepared by a Court Child Expert, usually a psychologist or somebody who has expertise in possessing child-parent relationships, particularly in the context of parental separation and conflict. Child Impact Reports do not entail the level of inquiry involved in a full scale Family Report but are useful interventions to assist the court, particularly at an early or provisional stage.
Such a report in this case was prepared by Court Child Expert Ms F which was released to the parties on 28 February 2022. Ms F read all the documents that had been filed in the case to date. She was not able to see X or speak with her due to COVID-19 restrictions. At the present time, as I have previously indicated, X lives in suburban Adelaide, with her mother who has, to her credit, obtained work as a carer. She works two days per week.
As I indicated when I was engaged in exchange with the parties' counsel, Ms Laramie has many calls on her time because her middle child, C, who is aged about seven, has a very rare chromosome disorder and as a result suffers very significant special needs. As a result of his special need, he receives support through the NDIS.[4] Ms B, Ms Laramie's oldest child, does not engage with her father. At the present time, Mr Skinner lives in Town G which is 400 kilometres from Adelaide.[5]
[4] Child Impact Report of Family Consultant Ms F dated 28 February 2022 at [3].
[5] See Child Impact Report of Family Consultant Ms F dated 28 February 2022 at [4].
Interestingly, Ms Laramie reported to Ms F that she was supportive of Mr Skinner having a relationship with X and in this context Ms F noted that the parties agreed that it was in X's long-term interest that she have a strong relationship with her father and Mr Skinner, again to his credit, acknowledged that X needed the support of her mother's primary relationship.
However, to Ms F, each party eloquently expressed their concerns about the other, as I have briefly described them, the mother being concerned with substance and alcohol abuse, the father being concerned with what he regarded as the mother's mental health issues and family violence concerns. Essentially, the father asserts that the mother has exaggerated her concerns.
To Ms F, the parties described their co-parenting relationship as being either difficult or non-existent. As I have perhaps tritely observed to the parties, that may be so, but whether they like it or not, they are going to be involved with one another for a long time, particularly if they are sincere in saying that they want X, and I have got no reason to doubt Mr Skinner in this, they want X to have a meaningful level of relationship with her father.
So in this extraordinarily difficult context, Ms F summarised the dilemmas of the case. She said as follows:
[X] requires a structured routine and stability alongside the continuation and development of her relationship with her father. Supporting [Ms Laramie's] wellbeing at this time is also a primary consideration, as she is [X's] primary caregiver and is also managing the considerable needs of the three children, one of whom has special needs and requires significant resources both emotionally and physically to care for. [X] is highly reliant on a primary caregiver for her physical, emotional and development needs at this time.[6]
[6] See Child Impact Report of Family Consultant Ms F dated 28 February 2022 at [17].
Mr Skinner appeared supportive of Ms Laramie's role as primary caregiver and demonstrated a willingness to ensure that this relationship continues into the future. The emphasis in the case at this present juncture is on what are the appropriate interim or provisional arrangements for X to spend time with her father, and, whether that time should be subject to supervision and to what degree.
The nature of an interim hearing
At this juncture I need to explain the nature of the proceedings before me. This is an interim hearing. All I have had at the moment is some affidavits which each of the parties have deposed and the somewhat provisional report of Ms F, who has not actually seen X in person or seen her interact with either of her parents.
I have not seen either of the parties in the witness box. It is through the witness box and, in particular, parties being cross-examined and asked difficult questions what they have or have not done in the past that a person in my position makes findings about who he or she believes or does not believe.
At the final hearing stage, as the parties now know that is going to be in about seven months' time, there is time for a much longer hearing which involves a full canvassing of evidence, and at this stage I hope to have a more comprehensive Family Report about X's situation and an assessment of what is her relationship with each of her parents. Accordingly the evidence available to me is extremely limited at this stage and untested.
However, notwithstanding the deficiencies in the evidence, I still have to make a decision in terms of the parties' competing positions. At this stage it is the father's position that I need to put in makes a more extensive regime for him to have time with X. The mother's position is that I need to be cautious and incremental and bear in mind the vulnerability of the child and not lose sight of the fact that she has made very significant criticisms of Mr Skinner's past behaviour.
Whether those criticisms are true or not, I am not in a position to say. My job in a case like this is to assess risk – what are the risks to the child if something untoward may or may not occur. The test is whether the degree of risk is one of such a level that it is simply unacceptable for me to take, with or without precautions.
Necessarily individuals in my position are, because of the untested nature of the evidence available to them, likely to take a cautious approach, for obvious reasons, at the interim or provisional stage. The parties must bear in mind that any decision made at this stage is capable of being changed or reversed at the final hearing stage, when more evidence will be to hand.
application of Legal principles to the evidence available
The legal principles I have to apply are the same at both the interim and the final stage. Whatever order I make, I have to be satisfied that it is likely to be in X's best interests. It is her concerns, not the interests of the parties which are the most important consideration.
In determining how the child's best interests are to be served, I have to look at a long list of matters. In section 60CC of the Family Law Act 1975 (Cth) there are two categories of matters. Firstly, what are categorised as primary considerations, and there are two of those, and then a longer list of additional considerations.
As their name suggest, usually more weight is given to the primary considerations. As I said, there are two of those. Firstly, I have to consider the benefits a child is likely to have from having a meaningful level of relationship with each of his or her parents. That is what the law says, "meaningful". For obvious reasons, you can't have a meaningful relationship with a child if you spend no time whatsoever with the child.
A parent has to have sufficient time to have a meaningful level of relationship with child. In addition, parents need to do different things, with their child, to add meaning to the relationship between parent and child. Necessarily parents want to engage with their child or children in a variety of contexts, both fun things and mundane things like making a sandwich or putting a child to bed.
Such interaction adds meaning to relationships - just doing things together and being with one another in a quiet normal setting. In addition, relationships need time to be established so that there is an intimacy and a confidence between parent and child which allows them just to be together without doing anything. A child needs to be able to go to a parent to seek emotional comfort, which depends on familiarity. That is, from my perspective, what meaningful means in the context of child/parent relationships.
The other consideration is I have to think about protective concerns. I have to ensure that a child does not come to either physical or psychological harm as a result of being exposed to neglect, abuse or family violence. It is the law that I have to give greater weight to protective concerns over the benefits of meaningful relationships.
This really is the gravamen of the mother's position. She says that I have to give due consideration to protective concerns, which include supporting her role as X's primary carer. Underpinning her case is the submission that she cannot emotionally sustain the prospect of X spending extensive and unsupervised time with her father because of her fear that something terrible may happen.
Necessarily - and Mr Skinner, I think, appreciates this - all parents are naturally very protective of their children. When they do not trust the other parent, that provides fertile grounds in which fears multiply and even become irrational or out of perspective, but I cannot deny the reality of the mother's situation.
She asserts she does not trust Mr Skinner as a consequence of her experiences of him in the past, which have been negative. In addition, given the parties separation, they have little shared, if any shared experience of parenting X together.
For obvious reasons, I cannot make an order that the parties trust one another from hereon in. Trust will only develop if the parties progress in their relationship as parents, which in turn will depend on things not going wrong between them so far as X is concerned. I acknowledge that the exercise I am required to undertake is an extremely delicate one.
At this stage I acknowledge Mr Skinner's understandable aspiration to be fully involved in X's life and to be a proper engaged parent, who has a meaningful relationship with his child. I acknowledge that the years of early childhood are important in developing meaningful relationships, but in this context I think Ms F is of assistance.
It is her view that at X's age - and when she saw X she was not yet three years of age. She saw her in November - she said that it is the quality of time rather than the quantity that assists in the development and consolidation of relationships with parents and caregivers.[7]
[7] See Child Impact Report of Family Consultant Ms F dated 28 February 2022 at [21].
There is nothing easy about the parties' circumstances at the present time. There are logistical issues, but, more significantly, there are issues of trust. As Ms F notes, X is highly reliant on Ms Laramie,[8] and if Ms Laramie is anxious about arrangements or if arrangements from her perspective occur too quickly or too forced, that may impact on her ability to provide the care which X needs.
[8] See Child Impact Report of Family Consultant Ms F dated 28 February 2022 at [17].
In all the circumstances, I think that I have to be militating more in favour of caution than otherwise, and at this stage until the final hearing, I consider that overnight time is not appropriate.
As I've discussed with the parties, I think there can be some relaxation of the supervision. After all, Mr Skinner's time with X will take place at his mother's home. If Ms D is like most grandmothers, she will be very vigilant about her granddaughter, but at the same time she will be supportive of her son and the two having a relationship with one another.
As I said earlier, I can't make anybody's life completely risk-free. It is question of the degree of risk and there are risks in making a relationship so supervised or so truncated that a child loses the opportunity to have that intimacy and warmth with a parent, but at the same time I think I have to be balanced and careful.
In all the circumstances, until the hearing which is relatively soon, although the parties, no doubt, will be frustrated, I think that the mother's proposal moving to, in August which is about a month away, the alternate weekends on Saturdays and Sundays for six hours with the relaxed supervision is a proportionate response in the circumstances.
But, ultimately, cases have to progress and as children get more resilient and more mature, arrangements have to change. I have sympathy for Mr Skinner's position. I think it is to his credit that he says that he doesn't want to change X's primary carer.
As the parties will be aware these proceedings encourage parents to be very critical of one another. That is a damaging process, for obvious reasons. I hope I have been respectful for each of the parties and each of their positions has merit.
I have to choose between them, to some extent. I cannot keep everybody happy, but in the short to medium term, what I propose, although I appreciate will be disappointing to Mr Skinner, I think is a regime which will serve the child's best interests in the period leading up to the final hearing.
As I have indicated, I do not see the point of referring Mr Skinner to Mr H or a family violence counsellor if Mr Skinner is not willing to go, and as for the reasons I've already given, at this juncture, I am not persuaded that a hair follicle test, given the expense involved, is likely to be required.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 17 August 2022
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