Stearn & Samsen

Case [2022] FedCFamC1F 1056

Federal Circuit and Family Court of Australia

(DIVISION 1)

Stearn & Samsen [2022] FedCFamC1F 1056

File number(s): BRC 10091 of 2021
Judgment of: SCHONELL J
Date of judgment: 22 December 2022
Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the mother seeks to relocate four hours away from where the father resides – Where the parties have a highly conflictual relationship – Where both parties seem more focused on gathering evidence than on what is in the best interests of the child – Where the child has not spent time with the father since 30 November 2022 – Where it is not in the best interests of the child for the mother to relocate with the child – Where orders were also made increasing the father’s time gradually with the child.   
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL
Cases cited:

Adamson & Adamson [2018] FamCA 523

Atwill & Marden [2018] FCCA 1401

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Heath v Hemming (No2) [2011] FamCA 749

Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520

Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22

Division: Division 1 First Instance
Number of paragraphs: 122
Date of hearing: 22 December 2022
Place: Sydney
Counsel for the Applicant: Ms Pointing
Solicitor for the Applicant: LS Family Law
Counsel for the Respondent: Mr Shoebridge
Solicitor for the Respondent: Dore & Webb Lawyers
Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law

ORDERS

BRC 10091 of 2021

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

MR STEARN

Applicant
AND:

MS SAMSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT PENDING FURTHER ORDER:

1.Paragraph 17 of Order 1 of the orders made 8 June 2022 is discharged.

2.The respondent mother’s (“the mother’s”) interim application to relocate the residence of X to live within a 40 kilometre radius of B School is dismissed.

3.The parties forthwith do all acts and things to enrol or re-enrol X at C School, D Street, Suburb E

4.The mother do all acts and things to cause X to spend time with the applicant father (“the father”) as follows:

(a)From midday on 24 December 2022 until midday on 26 December 2022;

(b)Each alternate weekend thereafter during the Christmas school holidays for three nights from 9.00 am on Thursday until 5.00 pm on Sunday;

(c)Commencing in Term 1 2023, each alternate weekend from after school Thursday or 3.00 pm until 5.00 pm Sunday; and

(d)One half of each school holiday period at the conclusion of the first, second and third terms of school commencing at the conclusion of the first term of 2023 and failing agreement as to which half, the father’s time shall occur in the first half.

5.The mother is prevented by these orders…

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Stearn & Samsen [2022] FedCFamC1F 1056
Case
[2022] FedCFamC1F 1056
Decision Date

CaseChat Overview and Summary

The case of Stearn & Samsen involves the dispute between the parents of a child, X, regarding the arrangements for X's time with each parent following the parents' separation. The matter was heard in the Family Court of Australia. The central issue before the court was the determination of the best interests of X, considering the allegations of family violence, the parents' proposed time arrangements, and X's expressed wishes. Additionally, the court had to evaluate the risk of harm to X and decide whether the proposed time arrangements could sufficiently mitigate those risks.

The court considered the conflicting accounts provided by the mother and father regarding the dynamics of their relationship and the impact on X. The mother alleged that the father had been verbally and emotionally abusive towards her and X, while the father denied these allegations and claimed that the mother had exaggerated the situation to gain an advantage in the legal proceedings. The court also noted that X had expressed a wish not to spend time with her father, which the court attributed to the conflict between her parents rather than a genuine preference. The court further assessed the risk of harm to X, concluding that the ongoing conflict between the parents posed the greatest risk to her well-being.

In deciding what was in the best interests of X, the court weighed the primary consideration of protecting X from harm against the benefit of maintaining a meaningful relationship with both parents. The court found that the proposed time arrangements, which involved unsupervised time with each parent on alternate weekends and during school holidays, did not adequately address the risk of harm caused by the parental conflict. Consequently, the court decided that the proposed arrangements were not in X's best interests and needed to be modified to better protect her from the identified risks.

The court ordered that X's time with her father should initially be supervised to ensure her safety and to allow for a gradual adjustment to the arrangements. The court also mandated that both parents participate in a parenting program to address the underlying issues contributing to the conflict and to improve their co-parenting relationship. These measures were intended to protect X from the harm caused by the parental conflict and to create a more stable and nurturing environment for her.

Orders

Orders of the court

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Background

Background to the litigation

All parties referenced Mr L Family Report dated 13 January 2022 and Addendum to the Family Report dated 3 March 2022.Background facts The mother was born in 1984 and the father was born in 1984. The parties commenced cohabitation in or about 2013. X was born 2013. The parties separated in or about May 2021. Mr L initially prepared a comprehensive Family Report dated 13 January 2022 (the report bears a date of 13 January 2021 which is clearly a typographical error). The Family Report is based upon interviews conducted with the parties and with X in December 2021 as well as perusal of a number of documents. At the time of this Family Report, the mother had not indicated an intention to move to M Town. Mr L identified the following matters:23. The mother raises concerns about the father being increasingly aggressive and abusive towards her during the relationship, to the point she feared the next step would be physical violence. He was emotionally abusive to her in front of [X].24. The father denies the characterisation and says she concocted allegations to bolster her legal position. Mr L identified from the interviews with the parties that there were various risk factors including the mother’s allegations that the father was aggressive towards X including being emotionally and physically aggressive, that he was a persistent and regular user of a prohibited substance and that he displayed paranoid and psychotic episodes in 2015 that led to a hospital admission in 2017. The mother’s allegations were described by the father to Mr L as either untruthful or exaggerations. The father did not spend any time with X from shortly after separation until the making of orders in October 2021. Thereafter the father’s time was supervised pursuant to court orders. Mr L reports and observed as follows in the Family Report:141. [X] is a primary-school-aged child, young for her year group, who appears to be functioning reasonably well at school, maintaining social connections and with a strong emphasis on equestrian competition. The father is concerned about her application to schoolwork and the extent to which she copes with the curriculum, though no learning or developmental needs are identified.142. Because of the profound disconnection, the father is limited in his ability to comment on how [X] has been coping emotionally since the separation. He observes that she connects reasonably well with him by telephone and the recent contact centre visits have been generally positive, though the physical affection she shows him is notably different to their dynamics before the separation. 143. The mother states that, since the separation, [X] has been noticeably more anxious, insecure and vigilant, particularly at night. She now co-sleeps with her and maintains close proximity. She suffers from sleep disturbance and needs to check the house is locked up.144. [X] cannot be expected to have much foresight nor an ability to independently measure when she will see a loved-one again. She is more suited to structures applied in a consistent and regular manner, where peaceful transitions can occur at child-friendly times. She remains heavily dependent on secure, trusted caregivers to meet the bulk of her physical needs, to keep her to a routine and to provide her with hands-on, nurturing support and to keep her safe from harm.145. The mother has been [X’s] primary care giver since infancy, with the father working various fly-in, fly-out roles. Since the separation approximately eight months ago, the mother has been [X’s] exclusive caregiver and she has had a substantial disconnection from the father.…150. I think various factors are likely to underpin [X’s] views expressed in this setting, including:a. An exposure to dynamics of conflict and mistrust between the parents before the separation and an observation of the father as the aggressor in those dynamics.b. A structural history that has seen her more emotionally dependent on the mother on a consistent basis, with the father coming in and out of her daily life, which in all likelihood contributes to an emotional alignment with the mother.c. A set of behaviours, described by the mother, which are consistent with an enmeshed, somewhat anxious attachment with the mother at this stage.d. Her exposure to what, on either account, appears to have been a sudden, emotionally charged and confusing separation, in which she possibly shares a similar perspective of events as the mother.e. A profound disconnection from the father since the separation.f. An exposure to the mother’s distress, emotional intensity and vigilance surrounding [X’s] connection to the father.151. [X] does not possess the maturity to understand the consequences of her future care arrangements upon her relationships. The clear message she imparts, with a notable level of conviction, is that she is unlikely to cope with too much change all at once and she longs for a greater sense of peace and stability between the parents. …153. If the Court accepts the mother’s description of the dynamics before the separation, they are consistent with coercive controlling family violence, in which the father was principally the aggressor, exercising verbal and emotional abuse of the mother on a persistent, ongoing basis and openly in front of the child.…156. If the Court accepts the father’s description of the dynamics before the separation, they are not consistent with a typology of family violence. The account he offers suggests [X] may have had some concept of bickering and disharmony between the parents. He acknowledges looking through the mother’s phone at the time of separation, though he offers a different context and description of behaviour surrounding those events. He suggests the mother’s current level of aversion to him is based on her strong desire to gain an upper hand in these legal proceedings and if she holds any genuine aversion to him or to [X’s] relationship with him, then she is mistaken. …159. There is also little information to suggest that the father has ongoing substance abuse issues. He says he has been abstinent for well over a year and his cannabis use was sporadic and infrequent. The mother suggests he engaged in more frequent, regular use of [a prohibited substance] and possibly other drugs, which led to adverse outcomes of paranoid, highly anxious and possibly delusional thinking....161. Risks aside, it appears clear [X] is likely to struggle with rapid expansions of time with the father. The mother is also likely to struggle with the idea, which, in turn is likely to be obvious to [X]. There is a risk that any expansion of time which moves too rapidly is likely to be counter-productive given the level of stress or discomfort it will cause the child.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I agree with those observations.Primary and additional considerations In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties would contend that what they propose meets the criteria of a meaningful relationship with the other parent. Whatever might have been the status of the allegations of risk and harm raised by them exhaustively in their affidavits, in light of the time arrangements that each proposes, namely, unsupervised time each alternate weekend and in school holidays, it must be implicit and evinces in and of itself that as far as the parties are concerned, such risk of harm as previously existed can be accommodated and managed by the orders they propose. I am of the view, however, that there remains a risk of harm to X. It is one for which both parties bear responsibility. The risk of harm relates to the parental interaction and the conflict over what is in X’s best interests. In that respect, I note Ms O’s observation that:… the co-parenting relationship between [X's] parents presents emotional challenges for [X], exposes her to adult issues and related responses, and has contributed to [X] self-identifying a solution, through expressing a wish to not spend time with [Mr Stearn], as [Mr Stearn] and [Ms Samsen] have been unable to address the underlying issues to date. (Affidavit of Ms O, Annexure MO6) I agree with that conclusion as it is borne out by and consistent with the parties’ evidence. It is thus the conflict between her parents that is the single biggest risk of harm towards X. To the extent that I can, the orders that I propose will hopefully ameliorate this risk. In determining what is in the best interests of X, I will now consider such of the additional considerations as far as they are relevant. X is nine years’ of age. She does not have the requisite level of maturity or understanding of the significant issues which her parents have burdened her with. Whilst she has articulated to Ms O a wish not to spend time with her father as a way of lessening the conflict, I also note that X expressed to Ms O that time with her father is also positive. X’s expressed view to not spend time with her father is therefore clearly a function of the dynamic created by her parents and is her child like way of attempting to protect herself from that conflict. Given these observations and her age and level of maturity, I place little weight on her view as expressed to Ms O that she does not want to see her father. I also note that her mother does not propose that the father should not spend alternate weekends and half school holiday time with X.