Stanbrook & Holloway

Case [2021] FamCA 528

FAMILY COURT OF AUSTRALIA

Stanbrook & Holloway [2021] FamCA 528  

File number(s): MLC 5839 of 2016
Judgment of: HARTNETT J
Date of judgment: 13 August 2021
Catchwords: FAMILY LAW – PARENTING – equal shared parental responsibility – sole parental responsibility for education and medical treatment –residence of the child – time spent with the father – risk to child in spending time with a parent – drug abuse allegations – allegations that the mother medically neglected the child – child abuse allegations – the child’s exposure to stepmother’s negative views of her mother- psychological harm to the child established.
Legislation:

Evidence Act 1995 (Cth) s. 140

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA

Family Law Rules 2004 (Cth)

Cases cited:

M v M (1988) 166 CLR 69

Mulvany & Lane (2009) FLC 93-404

Ridley & Ridley (No. 2) [2020] FamCA 549

Number of paragraphs: 130
Date of last submission/s: 18 March 2021
Date of hearing: 30 September 2019 to 3 October 2019;
12 March 2020; and
23 to 25 November 2020
Place: Melbourne
Counsel for the Applicant: Mr Connell up to and including 25 November 2020
Solicitor for the Applicant: John Connell Legal up to and including 5 February 2021
Counsel for the Respondent: Mr Fuller up to and including 3 October 2019 In person up to and including 25 November 2020
Solicitor for the Respondent: Nicholes Family Lawyers up to and including 25 February 2020
Counsel for the Independent Children’s Lawyer

Mr Marchetti

Solicitor for the Independent Children’s Lawyer

Peter Lynch Solicitor

ORDERS

MLC 5839 of 2016
BETWEEN:

MS STANBROOK

Applicant
AND:

MR HOLLOWAY

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be and are discharged.

2.The mother have sole parental responsibility for the child Z born on … 2014 (“the child”) with respect to all medical and educational matters pertaining to the child.

3.The mother and father, subject to order 2 herein, otherwise have equal shared parental responsibility of the child.

4.The child live with the mother.

5.The child spend time and communicate with the father as follows:

(a)during school term periods;

(i)commencing on Saturday 21 August 2021, each Saturday from 10.00am to 8.00pm;

(ii)commencing on Saturday 18 September 2021, each alternate weekend from the conclusion of school (or 3.30pm) on Friday until the commencement of school (or 9.00am) on Monday and same should continue to occur during term 3 2021 school holidays.

(b)during each of the term holidays commencing 2022 (being term 1, 2, and 3) for the first week of the holidays, commencing from the conclusion of school on the last day of school term and concluding at 3.30pm seven (7) days later;

(c)During the long summer school holidays commencing in 2021:

(i)        In even numbered years:

A.From the conclusion of the school term to 4.00pm on 25 December.

B.       From 4.00pm on 2 January to 4.00pm on 9 January.

(ii)       In odd numbered years:

A.       From 4.00pm on 25 December…

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AGLC
Stanbrook & Holloway [2021] FamCA 528
Case
[2021] FamCA 528
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders between Ms Stanbrook (the applicant mother) and Mr Holloway (the respondent father) regarding their child, Z. The dispute involved allegations of drug abuse, medical neglect, and child abuse, with the court finding that Z had been exposed to her stepmother’s negative views of her mother, resulting in psychological harm. The proceedings were before Hartnett J of the Family Court of Australia.

The court was required to determine the appropriate parenting arrangements for Z, specifically addressing issues of parental responsibility for medical and educational matters, the child's residence, and the time Z would spend with each parent. A key legal issue was whether the presumption of equal shared parental responsibility under section 61DA of the *Family Law Act 1975* (Cth) applied, given the allegations of psychological harm to the child.

Hartnett J found that the presumption of equal shared parental responsibility did not apply, as there were reasonable grounds to believe the father had engaged in conduct causing psychological harm to Z. The court reasoned that the father and his wife had engaged in a campaign to discredit the mother, showing no regard for Z’s wellbeing or the importance of her relationship with her mother. While acknowledging Z’s attachment to her father and stepmother, and the benefit of a meaningful relationship with her father, the court prioritised Z’s best interests and protection from further emotional harm. Consequently, the mother was granted sole parental responsibility for Z’s medical and educational matters, with equal shared parental responsibility otherwise. Z was ordered to live with the mother, and specific, carefully delineated time arrangements were made for Z to spend with the father, subject to strict conditions designed to protect Z from further psychological harm and to prevent the repetition of past destructive behaviours.

Orders

Orders of the court

MLC 5839 of 2016

BETWEEN:

MS STANBROOK

Applicant

AND:

MR HOLLOWAY

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be and are discharged.

2. The mother have sole parental responsibility for the child Z born on … 2014 (“the child”) with respect to all medical and educational matters pertaining to the child.

3. The mother and father, subject to order 2 herein, otherwise have equal shared parental responsibility of the child.

4. The child live with the mother.

5. The child spend time and communicate with the father as follows:

(a) during school term periods;

(i) commencing on Saturday 21 August 2021, each Saturday from 10.00am to 8.00pm;

(ii) commencing on Saturday 18 September 2021, each alternate weekend from the conclusion of school (or 3.30pm) on Friday until the commencement of school (or 9.00am) on Monday and same should continue to occur during term 3 2021 school holidays.

(b) during each of the term holidays commencing 2022 (being term 1, 2, and 3) for the first week of the holidays, commencing from the conclusion of school on the last day of school term and concluding at 3.30pm seven (7) days later;

(c) During the long summer school holidays commencing in 2021:

(i) In even numbered years:

A. From the conclusion of the school term to 4.00pm on 25 December.

B. From 4.00pm on 2 January to 4.00pm on 9 January.

(ii) In odd numbered years:

A. From 4.00pm on 25 December to 4.00pm on 2 January.

B. From 4.00pm on 9 January to 4.00pm on 16 January.

(d) By telephone or video conference at 5.00pm for no more than 30 minutes each week that Z is in the mother’s care and on the father’s birthday and on such other times and dates as agreed in writing.

(e) On such other times and dates as agreed in writing.

6. Notwithstanding any other provision, Z spend time with each of the parties for special occasions at times to be agreed between the parties in writing, and failing agreement as follows:

(a) On Father's Day weekend, with the father from the conclusion of school Friday until the commencement of school Monday if Z is not in the father’s care that weekend.

(b) On Mother's Day weekend, with the mother from the conclusion of school Friday until the commencement of school Monday if Z is not in the mother’s care that weekend.

(c) For Z’s birthday, if Z is not otherwise spending time with a party that day, with that party from the conclusion of school until 7.00pm if it is a school day and from 12noon to 7.00pm if it is a non-school day.

7. The time that Z spends with the father is subject to the following conditions:

(a) The father will not cause or permit Z to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s consent except in the case of a medical emergency.

(b) The father will not allow any other person to cause or permit Z to attend on or be presented to any medical practitioner, psychologist, counsellor or other health professional without the mother’s written consent.

(c) The father will not permit Z to be in the unaccompanied care of his wife, Ms Holloway and/or Ms Holloway’s mother, Ms B for a period of 3 months from the date of these orders.

(d) The father will not discuss with Z any evidence in these proceedings or any concerns raised in these proceedings and/or allow Z to remain in the presence or hearing of any third party that discusses these proceedings or any concerns raised in these proceedings.

(e) In the event of a medical emergency, the father will immediately contact the mother by telephone and provide details of the medical emergency, including the names and contact telephone numbers of any treating medical professionals, the nature and circumstances of the injury and any proposed medical treatment.

8. Z communicate with the mother by telephone or video conference at 5.00pm for no more than 30 minutes each Saturday and Tuesday that Z is in the father’s care or at such other times and dates as agreed in writing.

9. The father is entitled to receive such information from Z’s school as is ordinarily provided to parents, including school newsletters, notices, reports and photograph order forms. The father is to make all necessary arrangements directly with the school in this regard.

10. The mother is at liberty to take Z out of Australia for holidays provided that:

(a) Z is not taken to an overseas destination where the Australian government warning for that destination is 'Reconsider Travel' or 'Do Not Travel' or equivalent warning.

(b) Z is not taken to an overseas destination that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

(c) The mother provides the father with no less than 30 days' notice of the planned travel.

(d) The mother provides the father with a detailed travel itinerary, including receipts for return flights and contact details for Z while they are overseas.

(e) The mother facilitates communication between Z and the father while Z is overseas.

11. Each party do all things as may be required to obtain and renew an Australian passport for Z.

12. Each party is restrained by injunction from denigrating the other party, and/or the other party's family while Z is in their presence or hearing, and/or allowing Z to remain in the presence or hearing of any third party who is denigrating the other party or the other party's family.

13. Each party is restrained by injunction from discussing the family law proceedings with Z and/or in the presence or hearing of Z and/or showing Z any documents relating to the family law proceedings.

14. The parties are restrained from using any other name for Z other than, Z.

15. The parties are restrained from encouraging or permitting Z to refer to any person except her biological parents as her mother or father.

16. For the purpose of these orders:

(a) School term holidays commence from the conclusion of school and end at the start of the next school term.

(b) Following term holidays and the long summer holidays, the school term arrangements resume in the same pattern that would have occurred had the arrangements continued throughout the holiday periods.

(c) Save where changeover takes place at school and save as otherwise agreed in writing, changeover occur at McDonalds in Suburb C.

(d) The parties personally attend changeover, save that they are each be entitled to nominate one other person to attend changeover in substitution in case of emergencies.

17. Each party is at liberty to provide a copy of these orders to any child care/school which Z attends, or any medical practitioner, psychologist, counsellor or other health professional treating Z.

18. Each party will provide the other party with no less than 28 days’ notice of any proposed change of address and each party will keep the other party informed as soon as practical of any change to their telephone number and email address.

19. The father is required to obtain leave of the Court before making an application to vary these orders, and any such application for leave be listed to JJ Hartnett in the first instance (if at all possible), pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth).

20. Otherwise all extant applications be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[7] [7] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].BACKGROUND The mother was born in 1979 and is now 41 years old. At the time of the hearing, she worked part-time as a Consultant at R Company where she earned approximately $39,000 per annum. The father was born in 1981 and is now 40 years old. At the time of the hearing, he worked as an Technician for the S Organisation. He had been an employee there for nearly 6 years. He earned approximately $89,440 per annum. The parties met in August 2010; commenced their cohabitation in or about late 2011; and married in late 2012. Z was born in 2014. The parties initially separated, under the one roof, in mid-2015 when Z was approximately 14 months old. They separated on a final basis in late 2015. There is a protracted IVO history between the parties. The father applied for an IVO against the mother in March 2017, which was successfully resisted by the mother and was dismissed in December 2017. In October 2017, the mother sought and obtained an IVO against the father. That IVO (through extension) continued to operate at trial. In June 2016, the father began a relationship with Ms Holloway. They married in late 2017, when Z was 2 years and 8 months of age. In December 2018, the present proceeding commenced. On 5 March 2019, at an interim hearing in the FCC, her Honour Judge Small determined, that until further order, Z spend time with her father on a supervised basis. This order followed an earlier order made by her Honour where provision had been made for Z to spend daytime periods with her father that were not supervised and for Z to live with her mother. The matter was transferred to the Family Court of Australia on 5 March 2019. Time between Z and her father continued on a supervised basis by Court order. The time-spent arrangements were impacted by the effects of COVID-19 commencing March 2020. No time spent with occurred between Z and her father between 28 March 2020 and November 2020, for reasons explained hereafter. During the continuation of the hearing on 23 November 2020, the ICL indicated to the Court, the ICL’s support for Z to spend time with her father, unsupervised, to the exclusion of Ms Holloway for at least an initial period. Suggested periods of time were daytime and with a frequency at least fortnightly. The mother agreed with that suggestion. The father did not agree, saying if unsupervised time were to occur, it should occur with the father and stepmother both present. The father was not prepared to consent to any interim order as proposed by the ICL and the mother. Despite the father’s refusal to agree to any such order, he did indicate to the Court that he would abide any order made by the Court. Thus, following the hearing on 25 November 2020, orders were made for Z to spend unsupervised daytime periods with her father with conditions imposed including that Ms Holloway did not come into contact with the child. This interim restraining order was made, amongst other parts of the evidence, on the evidence of the Family Report writer, Ms H. In her Family Report dated 26February 2019, Ms H identified her concern as to the: “entrenched nature of the parental discord, and the likelihood of future litigation…” [8] Ms H observed that a part of this discord, was that the father did not demonstrate the capacity to contain or shield Z from Ms Holloway’s negative views about her mother, and that emotional harm was caused to Z as a consequence.[9][8] Family Report by Ms H dated 26 February 2019 at paragraph 119. [9] Family Report by Ms H dated 26 February 2019 at paragraph 120. Standard of Proof

Evidence

Evidence Before The Court

The Court has concluded that there are reasonable grounds to believe in this case that Z’s father has engaged in conduct causing psychological harm to Z. Accordingly, the presumption in s 61 DA of the Act of equal shared parental responsibility when making parenting orders, does not apply. Such presumption is also rebutted by the best interests considerations as referred to in s 61DA(4), as is explained in these reasons.THE EVIDENCE Ms Holloway is the wife of the Respondent father, and Z is her stepdaughter. Ms Holloway became increasingly involved in the care of Z following November 2016, when Z commenced to spend 7 nights each fortnight in her father’s care. She had however become involved in Z’s care almost immediately upon commencing her relationship with the father in June 2016. Some aspects of her primary involvement in that care are set out hereafter. In June 2016, Z was only 2 years and 2 months of age. Dr L has been Ms Holloway’s registered general practitioner since 2007. She is also the general practitioner of Ms Holloway’s mother, Ms B. Z commenced to be treated by Dr L in August 2016, at the instigation of Ms Holloway. Neither Ms Holloway’s, nor the father, told the mother that Z was attending upon a second doctor, Z already having a treating General Practitioner (“GP”). Z thus lost her continuity of care with one doctor. This situation evolved because Ms Holloway and the father were concerned about the treatment then provided by Z’s treating GP. They did not however discuss their concerns with the mother. One of the father and Ms Holloway’s concerns as to the mother providing proper medical care to Z, arose upon the mother providing to the father a prescription for medication for Z. The script made provision for asthma medication. The father and Ms Holloway claimed that they were not aware that Z had an asthma condition. The mother disputes this. Ms Holloway discussed with Dr L her concerns as to the provision of asthma medication by the mother to Z. Dr L recommended that the father and Ms Holloway take Z to attend upon a respiratory specialist. They did so. On 19 February 2017, Z had a consultation with Professor T, Paediatric Respiratory and Sleep Physician. The father did not speak with the mother prior to the appointment being made, and nor did he invite her to the appointment, only informing her of it at a later time. Likewise, when Dr L referred Z to a general paediatrician, as sought by the father and Ms Holloway, who consulted with Z on 18 February 2017, the mother was not informed that the father and Ms Holloway were seeking such referral. Upon obtaining the referral, the father and Ms Holloway emailed the mother stating that Z had, “behavioural issues.”[12] They asked the mother whether she wished to attend the appointment. From the mother’s perspective, and that of Z’s treating GP, Z was generally a happy and healthy little girl, who loved each of her parents and who was developing in an age appropriate manner. This type of correspondence emanating from the father and Ms Holloway was correspondence which the mother considered to be harassing and frightening. The mother’s evidence was that she was intimidated by this correspondence, and its tone and/or content, as she was in respect of much of the voluminous correspondence which emanated from the father. Her fear had caused her to not engage with the father, in particular, because the father wrote to the mother in 2016 indicating that she was not to contact him under any circumstances in the future, unless it was a matter of a serious health issue in respect of Z.[12] Transcript dated 3 October 2019, page 59 at line 3.

Decision

Reasons for decision

DSC JJ DSC JJ
The mother’s understanding of the responsibilities of parenthood considerably outweigh the father’s. It is she who has promoted Z’s relationship with the father. The father has actively sought to undermine and destroy Z’s relationship with her mother. Both he and Ms Holloway engaged in a campaign to falsely discredit the mother. The lengths to which they went were planned and extraordinary. They showed no regard for Z’s wellbeing nor the importance to her of the presence of her mother in her life. Despite all this, the mother continues to promote Z’s best interests by supporting her relationship with her father for so long as that relationship does not present a risk of emotional harm to Z. The father and Ms Holloway have attempted some self-reflection in their attendance upon Mr J. They have much to offer Z if they accept the primary presence of her mother in her life and support that relationship. They shall be given an opportunity as that promotes Z’s best interests, but there needs to be a slow re-engagement with Z. The mother shall have an ability to return to Court in a timely way if further difficulties arise that would require a revisiting of these orders. CONCLUSION Considering the clear mistrust between the parents and the parties’ assessed inability to collaborate, communicate and compromise, I am cautious with respect to extending time-spent arrangements for Z. However, Z is older now with greater ability to self-protect. Her father is an important figure in her life and the benefit to her of a meaningful relationship with him is obvious so long as history is not repeated. It should not be. Ms Holloway is a part of the father’s household and is a person to whom Z has a significant attachment. Her attendance and that of the father upon Mr J shows some limited insight. For Z there needs to be an advancement to a more normal situation with both the father and Ms Holloway absent their previous destructive behaviours. The orders the Court shall make address that balance to promote Z’s best interests. Finally, the orders as sought by the mother and the ICL as to the mother’s travel with Z were not particularly challenged or addressed by the father. There is no prospect of the mother removing the child from the jurisdiction. Both the mother and the ICL sought the orders in circumstances where they sought to avoid a return to Court in the context of the father’s oppositional stance in many areas. The reality is that the mother is unlikely to be able to financially afford such travel. However, it would be an opportunity, if it did arise, that would advance Z’s best interests, being a significant holiday with her mother, a thing for her to treasure.

Ratio Decidendi

Legal Principle Established

Established by: DSC JJ, DSC JJ

On the 5th of December 2016, Ms G invited both the mother and Z to her son’s birthday party. On the 20th of December 2016, the father sent a message to his mother stating that, on legal advice, he may pursue criminal action against the family and that he would let them know if he decided to go to the police.[56] It was Ms G’s evidence that the father was trying to frighten the family in circumstances where the family had tried contacting him to invite him for Christmas dinner. Ms G’s evidence was further that the father, “has been cruel and nasty in the way that he talks about [the mother] both publicly and privately.”[57][56] Ibid at paragraph [20]. [57] Ibid [24]. Additional considerations Pursuant to s 60CC(3) of the Act, additional considerations are required to be considered by the Court, as far as they are relevant to this proceeding. They are considered in the totality of these reasons. I add the following below. Z loves her father and her mother. She also loves Ms Holloway. There is no challenge made by the mother to that fact. Z wishes to spend time with her mother, her father and Ms Holloway. Her age and level of maturity is such however, that these views are given little weight save the Court is mindful that the mother and the ICL acknowledge that if Z’s wishes can be accommodated without risk, they should be. Z has a well-established relationship with each of her mother, her father and Ms Holloway. Each of her parents can provide for her physical, intellectual and financial needs. Her mother can provide in far greater measure for her emotional needs. Indeed, the issue in this proceeding is primarily what risk of emotional harm might Z be exposed to in her father’s care. The mother’s understanding of the responsibilities of parenthood considerably outweigh the father’s. It is she who has promoted Z’s relationship with the father. The father has actively sought to undermine and destroy Z’s relationship with her mother. Both he and Ms Holloway engaged in a campaign to falsely discredit the mother. The lengths to which they went were planned and extraordinary. They showed no regard for Z’s wellbeing nor the importance to her of the presence of her mother in her life. Despite all this, the mother continues to promote Z’s best interests by supporting her relationship with her father for so long as that relationship does not present a risk of emotional harm to Z. The father and Ms Holloway have attempted some self-reflection in their attendance upon Mr J. They have much to offer Z if they accept the primary presence of her mother in her life and support that relationship. They shall be given an opportunity as that promotes Z’s best interests, but there needs to be a slow re-engagement with Z. The mother shall have an ability to return to Court in a timely way if further difficulties arise that would require a revisiting of these orders. CONCLUSION Considering the clear mistrust between the parents and the parties’ assessed inability to collaborate, communicate and compromise, I am cautious with respect to extending time-spent arrangements for Z. However, Z is older now with greater ability to self-protect. Her father is an important figure in her life and the benefit to her of a meaningful relationship with him is obvious so long as history is not repeated. It should not be. Ms Holloway is a part of the father’s household and is a person to whom Z has a significant attachment. Her attendance and that of the father upon Mr J shows some limited insight. For Z there needs to be an advancement to a more normal situation with both the father and Ms Holloway absent their previous destructive behaviours. The orders the Court shall make address that balance to promote Z’s best interests.