Smits & Jansen

Case [2022] FedCFamC1F 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Smits & Jansen [2022] FedCFamC1F 33  

File number(s): HBC 511 of 2020
Judgment of: MCGUIRE J
Date of judgment: 10 February 2022
Catchwords: FAMILY LAW – CHILDREN – Application by father seeking orders that the child live with him – that he have sole parental responsibility for the child – that the child spend time with the mother each second weekend and for half of all school holidays – Application opposed by the mother who seeks mirror orders to those of the father whereby the child live with her and she have sole parental responsibility – The father lives in City E and the Mother lives in City Z - Orders that child live with father for 8 nights per fortnight and with the mother for 6 nights per fortnight – Order that child spend half of all school holidays with his mother - Order that father have sole parental responsibility for the child subject to the father notifying the mother in in respect of important issues regarding the child’s medical treatment and education  
Legislation: Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC, 61DA(2) and (3), 65DAA(1)(a) and (b)
Cases cited:

Goode & Goode (2006) FLC 93 – 286

MMR v GR (2010) 240 CLR 461

Mazorski v Albright (2007) 37 Fam LR 518

Champness & Hanson [2009] FamCAFC 96

Division: Division 1 First Instance
Number of paragraphs: 189
Date of hearing: 6, 7, 8, 9 & 10 December 2021
Counsel for the Applicant: Mr Mead
Solicitor for the Applicant: Baker Wilson Davies Lawyers
Counsel for the Respondent: Ms Higgins
Solicitor for the Respondent: Bishops
Counsel for the Independent Children's Lawyer: Mrs Mooney SC

ORDERS

HBC 511 of 2020

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

MR SMITS

Applicant
AND:

MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.That all previous parenting orders in respect of the child X born 2014 (‘X’) be discharged.

2.That the father, Mr Smits, have sole parental responsibility of X.

3.That the father notify the mother, Ms Jansen, in respect of important issues regarding X’s medical treatment and education.

4.That commencing 9 February 2022 X shall live with the mother at the following times:

School term

(a)During week one of the school term from the conclusion of school on Wednesday (such time to commence at 10.00am if a non-school day/student free day/public holiday) until commencement of school Friday (such time to conclude at 3.00pm if a non-school day/student free day/public holiday);

(b)During week two of the school term from the conclusion of school Wednesday (such time to commence at 10.00am if a non-school day/student free day/public holiday) until 4.00pm Sunday (extending to 4.00pm Monday in the event of a non-school day/student free day/public holiday) with handover to take place at Location V at the conclusion of the visit and in the event the mother is in City E…

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AGLC
Smits & Jansen [2022] FedCFamC1F 33
Case
[2022] FedCFamC1F 33
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Smits & Jansen involved a dispute between the parents of a child, X, regarding the best arrangement for his care and upbringing. The father, originally from Country AA, wished for X to experience his heritage and culture by spending significant time in Country AA, including attending school there. In contrast, the mother was concerned about the father potentially relocating with X, viewing him as a flight risk. Despite these concerns, the mother had previously agreed to a travel arrangement that allowed X to travel with the father under certain conditions, including the provision of a bond. However, her apprehensions about the father's intentions persisted.

The primary legal issue before the court was determining the best living arrangements for X that would minimise the impact of his parents' conflict and non-cooperation on his well-being. Both parents presented arguments supported by expert evidence suggesting that a change in the current regime might benefit X by providing more stability and reducing exposure to parental conflict. However, the court had to consider whether a change in the regime would indeed mitigate the ongoing issues of conflict and lack of communication between the parents. The court also had to weigh the potential benefits of a change against the disruptions it might cause, such as a change of school and peer groups for X.

The court found that while the parents' conflict and lack of communication had negatively impacted X, changing the current regime might not necessarily alleviate these problems. The court agreed with the experts' view that the core issue was not the current living arrangement but the parents' attitudes and inability to cooperate. The court highlighted that regardless of the regime, the likelihood of further disputes remained high. The court also noted the importance of X's current school and peer relationships in providing stability and support amidst the parental conflict. Given these considerations, the court decided that maintaining the status quo was in X's best interest, allowing him to continue living with his mother in City Z with regular visits to the father, facilitated primarily through school changeovers. This arrangement, while not ideal, was deemed the least disruptive for X in the context of his parents' ongoing conflict and inability to cooperate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There remains of an issue of overseas travel for X where the father being a Country AA citizen wishes X to experience his Country AA culture and identity and to spend time with extended family. The father's preferences in this matter extend to X spending block times in Country AA including attendance at school. Not surprisingly, the mother views the father as a flight risk in respect of X but in May 2018 agreed to orders which would permit travel for X with the father overseas and the provision of a bond. The evidence before me is that the mother remains concerned as to him being a flight risk.BACKGROUND FACTS The father is 52 years of age. He is of Country AA origin and citizenship. He is a professional with substantial tertiary qualifications who has previously studied in the United States. He came to Australia to take up employment in Tasmania. He is now a student studying towards a Degree at the CC University with a stated intention to concentrate postgraduate studies in family relationships. The father became an Australian citizen in June 2020. The father has been in a relationship with Ms M since May 2019. They live together in Ms M's home. The father has his own home but he now rents that through Airbnb. There are no children of the relationship between the father and Ms M. Ms M does not herself have children. She does, however, have an immediate and large extended family in City E. The evidence is that X is the only child of the father. Ms M has been an educator but now works in the arts. The mother is 49 years of age. She lives in City Z. She is not in a relationship. She has no children other than X. The mother is employed in allied health with qualifications and previous employment as a health professional. The mother owns her own home in City Z encumbered by mortgage. The mother is originally from City Z although she has lived interstate for several years. Her extended family lives in City Z. The parents met on an online dating site in July 2011. Their relationship, such as it was, appears to have been short with each having different interpretations as to the status and duration of their relationship and cohabitation. The parents do agree that they commenced IVF treatment in November 2011 and continued over seven years. The mother commenced her first IVF treatment cycle in October 2012 asking the father to be a donor. The mother says that she initially signed the N Health Service paperwork as a 'single person' but that the father later requested a change to that paperwork to having him listed as 'partner' as distinct from 'known sperm donor'. The IVF process has been long and difficult with the mother enduring 10 documented pregnancies but with X being the only successful live birth. The parents’ capacity for conflict and lack of communication appears to have been evident during the IVF process by reason of the evidence of the both of them. The father's trial affidavit at [33] deposes thus:Directly after birth, my status appeared still that of a donor. With our continuing difficulties, I had hesitation signing X's birth certificate, which would formalise my responsibility as X's father. With reassurance from [the mother] and a leap of good faith I signed the birth certificate on what [the mother] said was the last day for registering X's birth.

Evidence

Evidence Before The Court

Dr K, Forensic and Clinical Psychologist, was appointed on 3 March 2021 to provide an independent psychological report for the Court. Her first report is dated 8 June 2020 and its release prompted an application by the Independent Children's Lawyer seeking an order in the interim that X live primarily with the mother in City Z. That application was dismissed with the status quo from May 2018 remaining pending this trial.THE EVIDENCE The father The father relied on his trial affidavit affirmed 25 November 2021. That document takes the form of a narrative of the relationship. It is almost entirely critical of the mother with little or no acknowledgement of her either personally or of her parenting. At [425] of his affidavit the father references X’s preferences which he told the expert, Dr K, as wishing to live with his mother but where the father says: X has also spoken of how he does not want to tell Mummy that he doesn't want to move to City Z as it would make Mummy sad. He has also asked me to buy a house in City Z. The father gave evidence and was cross-examined. He had a good command of English although not his first language. He presented as a rigid, assertive but candid witness. Similar to his affidavit, he was singularly negative in respect of the mother but whilst apparently child–focused in his responses. He fits the profile suggested of him and of his profession as being vigilant, ordered and structured in respect of both his personality and his parenting of X. He was of generally calm disposition but on occasion became emotional and teary in the witness box. He was unbending in his conviction that he is the victim of a process of alienation by the mother even when aspects of the mother's efforts at contributing to his relationship with X were put. Consistent with his personality, the father thought it entirely proper and reasonable that he should seek counselling and support from a psychologist in respect of his views as to being alienated and then to pursue a university course or similar on the subject of alienation. Nevertheless, there were some positive signs from the father in the witness box not evident in his written affidavit material. As mentioned, he became emotional during some vigorous cross-examination in what I saw as a sign of objective self–reflection being perhaps a unique experience for him. He attempted on two occasions to apologise to the mother from the witness box and on one occasion successfully so although on the second attempt being stopped by the mother's counsel. The father conceded his contribution to the entrenched communication difficulties between he and the mother. He presented to me as being willing to address these issues and contrary to his otherwise rigid demeanour. The father presented in many ways as the 'victim' of the difficult parenting dynamic between he and the mother. He defended accusations against him of Munchausen's by proxy and over communication and vigilance as part of his parenting style.

Decision

Reasons for decision

The experts and the ICL quite properly identify the impact on X of his parents’ conflict and attitudes. They suggest that a change of regime might alleviate these problems for X although Dr K in her evidence in court was more pointed in identifying the problems not being so much with the regime but the attitude of the parents being a viewpoint with which I agree. That is, in my opinion, regardless of the regime of time for X between his parents, there remains an almost inevitable probability of further litigation as disputes arise.FINDINGS AND CONCLUSIONS It is difficult to find that these two parents had any relationship whatsoever as generally understood. Cohabitation, such as it was, was brief at best. The process of X's conception was more by reason of contract than relationship. Their parenting and personal relationship has since been based on conflict, mistrust and disrespect. They have been unable to communicate productively in respect of their son. On the evidence, however, and despite his parents rather than because of them, X has developed significant and meaningful relationships with each of the father and the mother. He is undoubtedly confused and negatively impacted by his parents’ failure to co-operate in respect of him and to expose him to their conflict. In this respect, I generally accept the evidence of Ms M in her affidavit, such being unchallenged, as to the negative comments reported by X from his mother in respect of the father and in this regard I reject the denials of the mother. Similarly, I generally accept that X has not been exposed to any positive comment in either household in respect of the other parent. The evidence is that X is an intelligent but sensitive child where such conflict and impact is accentuated by reason of those sensitivities. Pre-trial issues of X exploring his gender identity and mention of Gender Dysphoria for this seven year old were emphasised and indeed formed some considerable basis for interim applications. Whilst matters of gender identity might remain for X, there is no evidence to suggest any issue of Gender Dysphoria. I am generally satisfied that each of the parents have acknowledged and acted sympathetically in respect of X's exploration of his identity. Again, however, they have approached this issue with conflict and suspicion and their support for X has been individual rather than unified where their approaches differ to a degree and thereby inevitably burdening this young child even further. In circumstances where these parents are separated actually and emotionally, if indeed they were really unified, issues of family violence between them do not feature prominently. I accept, however, that the mother feels harassed and perhaps controlled or coerced by the father's propensity for over communication by email or similar. I also accept, however, that the father is frustrated in his attempts to obtain adequate responses from the mother which again demonstrates only the personality differences and capacity for negativity by each of these parents. Whilst the father was criticized for over-communication, the evidence is that his repeated communications to the mother came by reason of no or no adequate response where he is the primary carer of a child in a system which frowns on unilateral decision making.

Ratio Decidendi

Legal Principle Established

The mother has effectively delegated medical and educational matters to the father. She previously delegated primary care of X to the father. This is not because she is uninterested but rather for reasons of conflict avoidance. The father has assumed these roles but does so arguably with hypervigilance and potential over–servicing albeit, on the evidence, mitigated to a degree by the role of Ms M in the father's household.Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from: (i) either of his parents; or(ii) any other children, or person (including any grandparent or other relative of X), with whom X has been living; This is a crucial consideration where primary arguments from both sides are supported to a degree by the experts and suggest that a change from the current regime would be in the X's best interests. Put simply, he would then settle into the home of one or other of the parents providing a greater routine and less exposure to conflict. His relationship with the non–primary parent would necessarily then become less frequent and one of 'visitor'. Whilst undoubtedly there are strong arguments in respect of the positives of these changes, the Court must still be aware of the potential negatives for X. That is, will the conflict, non–communication, and non–cooperation between these parents be alleviated by simply changing the regime of time for X? The mother's proposal brings further changes for X not least being a change of school from City E to City Z which would then bring with it the severing of current peer group relationships and the creation of new relationships. The evidence is strongly persuasive that X's current school, Q School, have been supportive, sympathetic and positively reactive to X's circumstances and needs including issues of gender identity. They have dealt appropriately with the difficulties confronting the school by reason of the parents’ personalities. Where this child has spent his seven years embroiled in and exposed to conflict between his parents, this school has undoubtedly provided him with much needed stability and respite. Similarly, X's peer-group relationships appear important to him and his development and where arguably his friendship with 'Ms G' in his current school has been influential and positive. Changeovers have been problematic for these parents and hence for X but where currently the majority seem to take place at school. This issue will not, however be lessened by the primary proposals of each of the parties and may well be exacerbated.Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis The mother's personal and work circumstances together with the current regime allow for most of the changeovers between these parents to occur with the assistance of school. Currently X travels with his mother to City Z each second weekend. Realistically, the primary proposals of each of the parents will continue this travel for X whether he lives with his mother or with his father. Almost ironically for parents who are so conflictual and non–cooperative, both appear willing to contribute to the costs and efforts of the logistical changeovers for X.Section 60CC(3)(f) the capacity of each of:(i) X’s parents; and(ii) any other person (including any grandparent or other relative of X);to provide for the needs of X, and including emotional and intellectual needs