Stedman & Stedman
[2024] FedCFamC2F 1701
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stedman & Stedman [2024] FedCFamC2F 1701
File number(s): MLC 15199 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – Parenting – Final hearing to determine discrete issue of where one child is to attend for the remainder of primary school – Where father seeks additional changes to final orders – Where father is unrepresented – Orders sought in father’s filed response to mother’s application treated as section 65DAAA application – Section 65DAAA issue adjourned for hearing at a later date to allow for procedural fairness to mother – Final orders as to child’s schooling – Circumstances where significant commute for mother to take child to current school – impacts on mother’s mental health – Where mother’s housing situation is precarious – Where mother has care of parties’ children as well as an infant from another relationship – father better able to cope with child not allegedly attending school of his choice – real risk for child either way – Change of school ordered Legislation: Family Law Act1975 (Cth) ss 60CC, 65DAAA Cases cited: Babic & Taccini [2024] FCWA 203
Licata & Buxton [2019] FCCA 3181
Rasheem & Rasheem [2024] FedCFamC1F 595
Re F: Litigants in Person Guidelines (2001) FLC 93 072
Rice & Asplund (1978) 6FamLR 570, (1979) FLC 90-725
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 14 November 2024 Place: Melbourne Counsel for the Applicant: Ms Teicher Solicitor for the Applicant: Pentana Stanton Lawyers Solicitor for the Respondent: In Person Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 15199 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STEDMAN
Applicant
AND: MR STEDMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The applicant mother, MS STEDMAN (‘the Mother’), and the respondent father, MR STEDMAN (‘the Father’), do all acts and things to cause the child, X born in 2015 (‘X’), to be enrolled at and to attend B School.
2.The Mother make available to any treating therapist that she attends a copy of:
(a)The report of Dr C dated 11 July 2024;
(b)The report of Dr D dated 6 December 2022; and
(c)The family report dated 12 July 2023;
and remind any such therapist, in writing, that those documents can only be used for the purpose of therapy and are not to be published or provided to anyone other than the therapist for any reason and bring to the attention of any therapist the contents of notation A to these orders.
3.The Father make available to any treating therapist that he attends a copy of:
(a)The report of Dr C dated 11 July 2024;
(b)The report of Dr D dated 6 December 2022; and
(c)The family report dated 12 July 2023;
and remind any such therapist, in writing, that those documents can only be used for the purpose of therapy and are not to be published or provided to anyone other than the therapist for any reason and bring to the attention of any therapist the contents of notation A to these orders.
4.The Independent Children’s Lawyer (‘ICL’) cause and ensure that the following be made available to Child Protection for reference, or context, or use by Child Protection as Child Protection see fit:
(a)The report of Dr C dated 11 July 2024;
(b)The report of Dr D dated 6 December 2022; and
(c)The family report dated 12 July 2023;
and bring to the attention of any Child Protection officer, in writing, the contents of notation A to these orders.
Interim orders and directions
5.The Father’s application to alter the existing final parenting orders (and the inherent question of his being permitted to do so pursuant to section 65DAAA of the Family Law Act 1975 (Cth)) contained in the Father’s Amended Response filed 21 October 2024 be referred to as ‘the Father’s Application’.
6.The Father’s Application on the section 65DAAA question be adjourned for hearing and, if appropriate, directions on 7 February 2025 at 10.00 am in the Melbourne Registry at 305 William Street.
7.By no later than 4.00 pm on 28 November 2024 the Father file and serve an updated Notice of Child Abuse, Family Violence or Risk.
8.By no later than 4.00 pm on 7 January 2025 the Mother file and serve:
(a)An updated Notice of Child Abuse, Family Violence or Risk;
(b)Any response or reply to the Father’s Application; and
(c)Any affidavit in support on which she seeks to rely.
9.By no later than 4.00 pm on 21 January 2025 the Father file and serve any necessary response to the material filed by the Mother.
10.By no later than 4.00 pm on 21 January 2025 the ICL file and serve any documents upon which they seek to rely.
AND THE COURT NOTES THAT:
A.The Court notes in regard to orders 2 to 4 herein that the diagnosis of Dr D is controversial and has not been tested, and the recommendations, observations and opinions of the family report writer have not been tested and were not followed in the final orders consented to by the parties on 9 August 2023.
B.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Stedman comes before me for what was originally intended to be a two-day hearing concerning which school the parties’ child, X, should attend for the balance of year 4, and years 5 and 6. The applicant today before me, Ms Stedman (‘the Mother’), is 36 years old and engaged in home duties. The respondent father, Mr Stedman (‘the Father’), is 35 years old, and his occupation is a community support worker. There is an Independent Children’s Lawyer (‘ICL’) in the case. The parties have two children: Y is aged just 12 and is in year 6, and X is almost 10 and in year 4. The parties commenced cohabitation in about 2012, married in 2014 and separated in early 2018. This is the second wave of proceedings in this family.
The matter came before another Judge of this Court on 9 August 2023, and final parenting orders were made by consent, save that those orders contemplated that upon the Mother obtaining better or permanent accommodation, that the children’s schooling may need to be reconsidered. Those orders made by consent provided that the parents have equal shared parental responsibility, and that the children live on a week-about basis between the parents. Since those orders were made, on one view, they have broken down, as it is common ground that for some months, the older child, Y, has only spent limited time with the Father.
On 22 December 2023, the Mother made application to the Court to determine the issue of where X would attend school until the completion of her primary school education. The parties agree that Y should attend secondary school in the city nearby to where they both live, that is in City E. The parties agree, or are likely to agree, that X should attend the same secondary school. The Mother’s difficulty with accommodation was alive at the time those final orders were made. The Father lived on one side of City E, and the Mother was able to obtain accommodation on the other side of City E. The orders provided that they were to each live within 50 kilometres of the City E CBD. Each do.
The Mother’s application is to the effect of changing Y and X’s school to a school that is in the direction of where the Father lives, but one that would require him to undertake more travel than what is currently undertaken by him. The Mother deposes to having to undertake significant and lengthy travel to get the children to school where they are currently enrolled. This is on the other side of City E where they are currently enrolled. It is also common ground that Y’s attendance at school has been less than entirely satisfactory and, to some degree, X’s situation is the same. The Mother has a two-year-old baby, F, from a relationship subsequent to the Father. The Mother complains of the burden of transporting F, Y, and X roughly an hour each way to and from school. In those circumstances, she seeks a change of school.
Section 65DAAA issue
On 21 October 2024 – that is, less than four weeks before this hearing – the Father filed an amended response whereby he sought a very significant change to the 9 August 2023 orders. He sought orders that he has the sole decision-making for the children, Y and X, and he sought that the children live with him and spend time with the Mother after school each Wednesday and each alternate weekend from 3.30pm, or after school on Friday, to 7.30pm on the Sunday and for roughly half of the school holiday periods, as well as special days.
The Mother is represented by counsel, the ICL is represented by counsel, and the Father appears on his own behalf. I have explained to him his entitlement to seek the assistance of the Court as to procedural matters and rights, and have those explained to him, pursuant to the decision of Re F: Litigants in Person Guidelines (2001) FLC 93 072. I have attempted to explain to the Father the relevant procedures and circumstances. I also explained the issue, or fact, of section 65DAAA of the Family Law Act1975 (Cth) (‘the Act’) in operation since 6 May this year. I put to one side the issue of whether section 65DAAA is a change in the law as between what was previously the position in regard to the decision of the Full Court of Rice & Asplund (1978) 6FamLR 570, (1979) FLC 90-725 (‘Rice & Asplund’) and whether that change or different emphasis is a distinction without difference.[1]
[1] I refer to the decisions of Whitehill & Talaska [2024] FedCFamC2F 768; Rasheem & Rasheem [2024] FedCFamC1F 595 and Babic & Taccini [2024] FCWA 203.
Section 65DAAA provides as follows:
Section 65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
The Father pressed that I deal with the issue of whether he is permitted to proceed with his application to change the orders today, at the same time as dealing with the school issue, seeing as everyone is at court. Ms Teicher, counsel for the Mother, sought some time (which I permitted) to enable her to take instructions as to whether her client agreed with that course, or would consent to the matter being revisited, or otherwise. The position of counsel for the ICL was that, as a matter of procedural fairness, the starting point would be that the Mother should have the opportunity to file material in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules. After Ms Teicher had taken instructions, the Court was advised that she did oppose the Father reopening the matter, and that she sought to preserve the existing orders, and that she sought to file material in response to his affidavit where he pressed matters of change of circumstance. The Father was given an opportunity to further address me, but had little to add to his initial position.
I am troubled by the number of times this family has to come to court to sort out these children’s interests and best interests, and the number of times this family has to come to court to get to an actual decision. Nonetheless, the requirement of procedural fairness is fundamental, and the Mother seeks the usual and ordinary opportunity to file an affidavit to deal with the allegations of change that the Father has made.
In all of the circumstances, I am satisfied that the requirement of procedural fairness – in substance and not just addressed in passing – would trump my concern about the number of times that the family comes to court. In those circumstances I will not hear the section 65DAAA controversy but will, in due course, make directions as to how and when that should proceed. Hence, I will now proceed with the hearing in regard to what the matter was originally listed for – that is, X’s school.
X’s school
The previous proceedings concerning this family had commenced back in 2021, and after three family reports relating to the welfare of the children and a report from a psychologist, Dr D, the parties compromised, and orders were made on 9 August 2023 that provided that the parents would have equal shared parental responsibility, and that the children would live week-about. Since then, there have been significant periods when the children have not lived week-about. At the moment, Y is not spending time with her father and is rarely, if ever, attending school. The parents agree that Y will commence secondary school in 2025 at a state secondary school in City E.
At the time of the August 2023 orders, the Mother was in precarious accommodation and struggling to find permanent or long-term accommodation. At a point after separation, the Mother had attempted to relocate to Queensland to live with her mother, but by court order, she was required to return to Victoria. Thereafter, the Mother struggled with accommodation, and that struggle for accommodation was well known.
The parties filed trial material in the lead-up to what would have been a final hearing on 9 August or thereabouts. That trial material included the Mother filing an affidavit on 19 June 2023 which included the following:
Accommodation Prospects and Homelessness
61. From [mid]-2021, I applied and enquired for approximately 65 rental properties in the [City E] Region from Queensland.
…
63. Since returning to Victoria [in mid to late] 2021 I applied for over 135 properties in the [City E] Region and was unsuccessful in each. Hereto annexed and marked '[MSS]-17' is a true copy of the spreadsheet of property applications.
64. Since returning to Victoria [in mid] 2021 we have moved over 14 times. Including time at [short stay accommodations, motels and] temporary crisis housing [through charities], couch surfing or short term stays with friends and acquaintances.
65. We are currently in tempora1y crisis accommodation until [mid] 2023 with no likelihood of securing affordable accommodation in the [City E] Region in the foreseeable future due to the cost of rentals, my low income and the rental crisis…
…
68. I acknowledge that [Mr Stedman] has posed an offer to the Family Report Writer and in affidavit that I could take over his lease, but this presents a multitude of problems as follows:
a. [Mr Stedman] is not on a long-term lease, as I believe that it is month to month which is not secure accommodation.
b. [Mr Stedman] has not provided any evidence to confirm the agent and landlord would approve my application or that he has discussed this with them. I understand that the agent has a strict policy on how to transfer a property and none of these steps have been taken.
c. The average 3-bedroom rental…
…
The annexure referred to as MSS-17 is a list of 200 properties that the Mother applied for broadly in the area of close, or nearby, to where the children were then attending school and to where the Father lived, as well as in the greater area of the nearby city.
The Father concedes that at all material times the Mother and he both were reliant on rental accommodation in circumstances of what he describes or concedes as a “housing crisis”. The final orders made in August of 2023 could not deal finally with the issue of where the children would attend school because the Mother’s accommodation was not known. It is now clear to me that the orders were made in the context of there being difficulties in obtaining rental accommodation.
Unusually in this case, and to the credit of the Father, prior to the final hearing he had more than once indicated to the Mother that he would attempt to do what he could to have his rental accommodation made available to her. So much is self-evident from paragraph 68 of the Mother’s then trial affidavit[2]. The Mother had many reasons for not regarding that as suitable accommodation. The Father also referred to his offer to make that accommodation available in his interview with the family report writer. The interviews were on 22 June 2024 and the family report was released on 12 July 2024.
[2] Recited earlier in these reasons
The Mother asserts from the bar table that on the day at Court when the orders were made, on 9 August 2023, that she provided to her lawyers – on the understanding they would be provided to the Father – two emails. Those emails were dated 22 July 2023 and 24 July 2023, and the Mother annexes those to her affidavit at exhibit MSS-02, pages 31 and 32 of 66 of her affidavit filed 17 October 2024. The emails demonstrate that the Mother made enquiries of the Father’s real estate agent about taking over that accommodation. The Father asserts from the bar table that he only learned of this inquiry by the Mother when he saw those emails attached to her affidavit of 17 October 2024.
That is the context behind the Mother’s position in her affidavit before me at paragraphs 20 and 21, which state the following:
20. When I contacted the real estate agent about taking over the lease, they had no idea what I was talking about as [Mr Stedman] hadn’t spoken to them at all. Annexed hereto and marked ‘[MSS]-02’ are copies of two email correspondences I sent and received from [Mr Stedman]’s real estate agent in [mid] 2023.
21. Because of [Mr Stedman]’s refusal, on 22 December 2023, I filed my Initiating Application with this Honorable Court seeking for the children to change from [G School] to [H School] commencing in Term 1 2024.
To the extent that there is an attempt to criticise the Father as being disingenuous in his offer of accommodation on this final hearing on this school question, I am not satisfied that the Mother’s preparedness to take that accommodation was ever made clear to the Father. Had it been made clear, it may be that the family would not be in the crisis that they are in. The long and the short of it is the Father continues to live in that accommodation nearby to the school that the children have attended all their school lives, save for a period of two months when they were in Queensland.
It is common ground that Y has not attended school on a regular basis and that is said to be by reason of “school refusal”. Further, Y does not attend – and it is the Father’s case that she refuses to attend – for time on the week-about basis with the Father. The children’s time after the 9 August 2023 equal time orders has been further interrupted by Child Protection investigations arising from reports made to them.
In response to a section 67ZBE order, the Department of Families, Fairness and Housing (‘DFFH’) provided to the court a report dated 15 July 2024, which includes the following list of instances of DFFH involvement with the family:
1. 07 March 2019 – 14 March 2019: Intake- closed without investigation.
2. 10 September 2019 – 10 September 2019: Section 38, Community-based consult.
3. 5 November 2019 – 21 November 2019: Intake- closed without investigation.
4. 2 November 2020 – 03 November 2020: Intake- closed without investigation.
5. 30 December 2020 – 26 March 2021: Protective intervention- concerns substantiated.
6. 3 June 2021 – 16 June 2021: Intake- closed without investigation.
7. 21 September 2021 – 6 October 2021: Intake- closed without investigation.
8. 17 May 2022 – 5 June 2022: Intake- closed without investigation.
9. 28 July 2022 – 23 August 2022: Intake- closed without investigation.
10. 25 August 2022 – 13 September 2022: Intake- closed without investigation.
11. 14 September 2022 – 22 November 2022: Investigation- closed without substantiation.
12. 6 March 2023 – 9 March 2023: Intake- closed without investigation.
13. 23 June 2023 – 23 June 2023: Section 38, Community-based consult.
14. 4 December 2023 – 22 December 2023: Intake- closed without investigation.
15. 29 December 2023 – 4 January 2024: Intake- closed without investigation.
16. 23 February 2024 – 27 February 2024: Intake- closed without investigation.
17. 22 March 2024 – 23 May 2024: Investigation- closed without substantiation.
18. 28 May 2024 – Current: Currently at Investigation phase.
The report of Dr D, dated 6 December 2022, arose from an interview with the Mother on 5 December 2022, and includes the following:
19There has been a poor co-parental relationship since the separation in January 2018 onwards. …
20[Ms Stedman]’s account is that the children were meant to be with their father twice per week but the father would cancel or reduce time. They organised mediation and the children initially would have time Saturday midday to Sunday midday …
21 … Court proceedings occurred in June 2021. The mother’s account is that she moved to Queensland as she was not coping and that she was not getting out of bed and was not caring for the children.
…
25… [Ms Stedman] returned to Victoria following court proceedings. She was livin in [temporary accommodation], and was pregnant with [F]... She subsequently obtained housing in [late] 2021 via [charities] although the accommodation is temporary and there has been some stress associated with her accommodation. She subsequently has moved and this accommodation has been problematic.
…
27… The mother spoke of difficulties that she had with the family reports, indicating that in the second family report she felt that the assessor was attacking her the whole time. She also indicted that she has felt that the ICL has been attacking her.
…
29[Ms Stedman] hopes to relocate to Queensland with her mother. She appears to have little priority allocated to the children’s relationship with their father. She raised the concerns of [Y]’s diagnosis of ASD in 2017 and ongoing issues with the child’s development and behaviour. Her account would suggest she has difficulty with basic issues such as having the children go to school or the children sleeping in their own beds.
…
33[Ms Stedman]’s account is that she has had difficulties with depression, particularly since the births of the children. …
…
35Recently she has begun on [prescribed medication], an antidepressant, from [early] 2021 via her general practitioner ([…]mg per day). Surprisingly, she reported that she has very negative depressive effects if she misses one tablet. Her account is that with this medication she has made some improvement, such as being able to get out of bed and being able to care for the children.
36[Ms Stedman] described in 2021 not being able to get out of bed to care for the children. Her account is that this was “carer’s burnout”. Her account is that she is functioning, but then indicated that sometimes the dishes are not done for 2-3 days.
37Her account of her depression would suggest biological symptoms associated with energy, having difficulty waking up. She described [sleep difficulties], with both children not sleeping in their own beds. Additionally, the mother described more general difficulties with coping with parenting and with life in general, which appear to be personality related, with more general difficulties associated with the children and their behaviour.
…
44The evaluation identified more clearly significant personality difficulties associated with [a mental health condition], with problems associated with mood modulation, impulsivity, tendency towards depressive symptoms, black and white emotional processing, and a tendency towards splitting in relationships. Her account would also suggest significant difficulties with her own behaviour in terms of caring for the children, prioritisation of the children, and coping with the children’s behaviour.
45Apart from antidepressant medication, [Ms Stedman] has had little intervention and appears to have little insight into her own difficulties, despite apparent understanding of some aspects of the depressive symptoms.
46The mother’s account would suggest it is unlikely that she has a formal depressive disorder, although there is a possibility of a Persistent Depressive Disorder with the overriding influence of personality problems. She can be diagnosed with a [mental health condition].
…
64Total Stress and Child Domain scores show that the mother reports that she is not coping with the child’s behaviour.
…
68It is indicated that her response pattern is likely to suggest a bias towards exaggeration or possibly “faking bad”.
69An interpretation should be made with caution if there are legal issues involved.
…
That assessment was made available to a family report writer who prepared a family report dated 12 July 2023. The family report recommended that the children live with the Father, and observed the following:
115. [Y] and [X] remain children with significant special needs. It seems that there has been some improvement in [Y]’s behaviours and school attendance. However, [Ms Stedman] commented that she and [Y] can still become angry with each other to the extent that [Ms Stedman] is required to go outside to collect herself. [X]’s comments about self-harming, intrusive crying and sometimes thinking she would like to die are of significant concern. [Ms J] should be notified about those comments immediately.
116. There can be no doubt that the insecure position the children find themselves in would be impacting upon their mental wellbeing. The ongoing conflict between the parents, experienced by the children through the ongoing dispute about the QLD move, would also be having a negative impact upon them. One way or the other, it would be in the children’s best interests to have this matter finalised. It appears there are three options for this family. Either [Ms Stedman] and the children relocate to QLD or they remain in Victoria either with the children in the primary care of [Mr Stedman] or [Ms Stedman].
117. Starting with the latter, the children remaining in the primary care of [Ms Stedman] in Victoria is dependant, at least, upon her finding appropriate secure accommodation for them. There can be no argument that there is currently a housing crisis throughout Victoria. Rental accommodation is diminishing and what is available is becoming more expensive. [Ms Stedman] provided a lengthy list of rental properties that she has unsuccessfully applied for. However, the offer of [Ms Stedman] taking over [Mr Stedman]’s home remains open. It is unknown what [Ms Stedman] might do if given the choice of losing primary care of the children or taking over [Mr Stedman]’s home.
118. Further, it is noted that [Ms Stedman] does not appear to have applied for rental homes in the [Suburb K] or [Suburb L] areas of [City E]. Whilst it is widely understood that neither of those suburbs would be considered ideal, a cursory look on realestate.com identified several homes, some recently renovated, that would fall within or just above [Ms Stedman]’s price range. [Mr Stedman] may wish to consider providing [Ms Stedman] some assistance in bridging a gap between her budget and the cost of ensuring the children have an appropriate and stable home, at least until [Ms Stedman] is able to better her financial position.
119. [Mr Stedman] asserted that he would stop his application for the children to live primarily with him if [Ms Stedman] found stable housing for herself and the children around [City E]. That assertion could be seen as somewhat confusing given his concerns about [Ms Stedman]’s parental capacity. He commented that he considered [Ms Stedman] may be causing the children psychological harm and that she seemed unaware of the impact of her mental health difficulties upon the children. It is noted that [Ms Stedman] confirmed that latter concern when she stated that she does not know “what the kids would be seeing” regarding her mental health struggles. It is further noted that [Dr D] expressed similar concerns.
120. It is of significant concern that [Dr D] assessed that [Ms Stedman] poses a Moderate to High risk to the children on the Family Strengths and Needs Assessment Tool. When combined with his assessment that the prognosis for [Ms Stedman] is poor given the nature of Personality Disorders and [Ms Stedman]’s lack of insight, the safety of the children in her care should be carefully considered.
121. [Ms Stedman], through her work with her psychologist, appears to consider her current psychological distress situational. Indeed, such housing insecurity would be a difficult situation for most people to manage, without some anxiety. When combined with three children with special needs, little professional and personal support and ongoing Family Court proceedings, the stress [Ms Stedman] is under could be considered extreme.
122. However, an independent assessment has found that [Ms Stedman]’s personality vulnerabilities are the main contributor to [Ms Stedman]’s current poor mental health status. [Dr D] suggests that [Ms Stedman] has a tendency to overstate her distress, through negative impression management, which would contribute to [Ms Stedman] finding an undoubtedly stressful situation overwhelming.
123. [Dr D] considered it highly unlikely that [Ms Stedman] could meaningfully support the children’s relationship with [Mr Stedman]. I am left with the impression that this would be so regardless of whether [Ms Stedman] and the children move to live in QLD or if [Ms Stedman] were forced to remain living in Victoria. If forced to remain in Victoria, it seems likely that [Ms Stedman] would develop a greater resentment towards [Mr Stedman] that could be enhanced by her personality vulnerabilities so as to become quite destructive, for both her and the children.
124. It is noted that [Ms Stedman] admitted that she cannot always get the children to school as she sometimes does not have the energy for “their fights”. [Ms Stedman] appears to be struggling with normal daily activities such as showering and household chores…
…
134.Further, it appears that [Ms Stedman] does not have the parental capacity at present to adequately attend to the children’s needs, at least in terms of supporting their relationship with [Mr Stedman]. It should be also noted that [Ms Stedman] has a history of unilaterally ceasing the children’s time with [Mr Stedman].
…
136. Both children appear unhappy at present about their school. It seems clear that [Y] is having some social difficulties and that [X] is struggling more generally with low moods. It may also be that they were experiencing typical end of term tiredness. If the situation does not improve for the children, it may be worth considering transferring them to another school.
…
It is significant that the parties agreed on an equal time arrangement and made orders to that effect on 9 August 2023 very soon after the report recommended that the children live with the Father. The parenting arrangements broke down soon after.
This matter was listed for a hearing as to one issue, and that was the school that X would attend until she commenced secondary school at the same school as Y expected to attend. The reality is that in 2023, having applied for literally hundreds of places to live, the Mother obtained accommodation at or near Suburb M. That is the other side of the major regional city next to where the Father lives and the children go to school.
It is also significant that the parties all agreed that I could determine this matter without the parties being cross-examined, that is on the papers. I am grateful to the parties for taking that sensible position. Notwithstanding that, I made many inquiries of each of the parties and/or their counsel to clarify matters that were uncertain in my mind.
The Mother’s case is that the burden of travelling 55 minutes to one hour from where she now lives to the children’s school at Suburb N places an intolerable burden on her, on each of the children, and on their baby sister, F. F is only two years old and it means she is spending roughly an hour each way in a car five days a week. It is not clear to me how many trips are actually made as it is also common ground that Y rarely attends school at all, and X does not attend school on a regular basis when living with the Mother.
The occasions of X not attending school on the week that she lives with the Father are said to be in the order of three times over a year and are, for my purposes, of no consequence. Nonetheless, the reality is this: the Father has, on the occasions that he is to get the children or X to school, himself and those children to look after. The Mother has the additional responsibility of caring for two-year-old F. Y, in either parent’s household, has the circumstance of being diagnosed with ASD, or ‘Autism Spectrum Disorder’, and that appears to be common ground. X is also being treated by a psychologist and herself has significant mental health issues.
For the purposes of this hearing, I am satisfied that there is real substance to the Mother’s statements to Dr D as reported and to the family report writer of her struggles with mental health and the circumstances of coping with the three children in her care. I do not have before me a report from the Father’s treating psychologist, Mr O, and the Father relies upon a statement in the Child Protection section 67ZBE statement to the effect that the Father is not suffering any significant mental health issue, but I do not have a report. In the context of the parties’ mental health, it came to pass that the Mother had available to her a report that her treating psychiatrist, Dr C, had provided directly to Child Protection upon request from Child Protection.
For reasons that I do not understand, Child Protection did not see fit to provide such a document to either the ICL or the Father. The document surfaced at about 4.05 pm this afternoon (it is now 4.49 pm) and when it came to the notice of the Mother’s counsel, it was made available to the Father and the ICL. It is clear from that document that the Mother is currently under the care of Dr C and Dr C’s observations include the following
I do not have any concerns that [Ms Stedman]’s mental health will impact on her capacity to parent her children. There is no risk factors identified that would lead me to question her parenting capacity.
It is also clear that Dr C is broadly aware of that at some point by someone, the Mother has been diagnosed as having a mental health condition. It is also apparent that Dr C does not actually have a copy of the report of Dr D. I have raised with the parties whether or not all medical practitioners should have a copy of all relevant medical documents.
I note the number of times that Child Protection has been involved in this family. It appears to be common ground that it is only in May of 2024 when the Father provided a copy of Dr D's report and the family report to Child Protection that they would have become aware of those matters, or I should say those untested observations of Dr D and the family report writer.
The fact that observations are made does not mean they are correct and binding, but the fact that they are made, and when they are made, may well be very relevant to any future litigation in this matter. As should be clear from earlier in these reasons (above), I have determined that I would not hear a section 65DAAA hearing this day. I am able to accommodate that on 7 February 2025. The Mother, not unreasonably, seeks the opportunity to consider the Father’s application further and to provide material in response, and at this point in time she seeks to maintain the existing orders and opposes the section 65DAAA permission that the Father seeks.
At this point, I do not make any prediction about whether the Father will or will not be successful in his section 65DAAA application. However, one matter that was discussed and conceded by the ICL was that his application cannot be regarded as hopeless. The application to reconsider the children's welfare is supported by the ICL. That does not determine it, but it indicates that it is not, on the face of it, at least on the information that is currently available, a frivolous application. Whether or not it is successful is a matter for another day.
The Father will have to travel almost as long to B School (where the Mother seeks to enrol X) as the Mother currently travels. The Father will have to travel in the order of 45 minutes, he estimates, and I suspect that will be plus or minus five minutes depending on traffic and time of the day. The Mother has to travel in the order of 55 minutes to an hour, plus or minus five minutes the other way. The Father says that by changing X’s school, the Court would be trying to address a problem with a change of school that will not be addressed by a change of school. He says the problem is the parental capacity and mental health of, I infer, the Mother.
If X is to be at B School, and two events occur, that is, the Father does achieve section 65DAAA permission to re-litigate the children’s orders and he is successful in changing them, he would then consider whether or not X should stay at B School or return to G School, depending on her circumstances. That appears to me to be a sensible position. The Father’s concern is that with real evidence of X’s precarious mental health, a change of school and the instability arising from that will be troubling to her.
The Father makes the point that Ms P (X’s psychologist) has been aware of the controversy about where X should go to school and has not made a recommendation one way or the other. I also proceed on the basis that both of the proposed schools, that is, the existing G School and the proposed new school are satisfactory schools. At her existing school, X will have the advantage of knowing the teachers and of the teachers being aware of her particular difficulties and the difficulty of her family, and already having peers and friends at that school. On the other hand, X told the family report writer back in 2023 that she hated school.
X is aware of her mother’s proposal that she should go to school at B School and, to the extent that a 10-year-old can make her own decision in the midst of such conflict between her parents and trouble, is at least not opposed to that school when she speaks to the Independent Children's Lawyer. X's circumstances are precarious. A change of school may impact on her mental health. But I am comfortably satisfied that the circumstances that the Mother labours under impose a more significant burden on her than the Father’s circumstances imposed on him in the current parenting arrangement. There is an uncertainty for X in all of this. It may be that the change of school adds to her stress and anxiety and trouble.
On the other hand, it may be that having a circumstance where, when living in her mother’s household for a week, the travel being easier for the Mother to accommodate along with balancing Y, as well as balancing her two-year-old sister, will significantly promote stability in that household.
I also note that at this time the Father does not press for an interim change of residence and he has his own reasons for doing so. Hence, the existing orders will remain for the time provided that these children should be living on a week-about arrangement. The Mother today presses that those orders remain in place. The Father points to the family being in dire circumstances as a matter of psychological, emotional and mental health.
The decision of Licata & Buxton [2019] FCCA 3181 at [109] recites the relevant authorities that are appropriate to consider.
109.The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust. This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF; Eden & Eden-Proust. It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust.
(footnotes omitted)
I must follow Section 60CC of the Act which is as follows.
Section 60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
…
Taking into account all of those section 60CC matters, orders that would promote the safety of X, Y, the Father and the Mother are finally all pretty much evenly balanced as to which school they attend, that is, what would promote the safety, including safety from being subjected or exposed to family violence, abuse, neglect or other harm. I also take into account, but do not place very much weight on, the views expressed by X. I take into account the developmental, psychological, emotional and cultural needs of X to the extent that I can with the evidence that I have available.
These reasons should not be interpreted one way or another as an indication of whether or not there will be a finding of a change of circumstances, or that it is in X’s interests for there to be further litigation. That matter will be determined after I have the material upon which the Mother seeks to rely. I take into account the capacity of each of the parents who are proposed to have parental responsibility. The Father, in the long run, if he is successful on the section 65DAAA question, seeks to have sole parental responsibility, and the Mother seeks that the parties retain joint parental responsibility.
Based on what the Mother is reported as telling Dr D and acknowledging that Dr C disagrees with Dr D’s assessment of the Mother’s personality, there is a question mark over the Mother’s capacity to parent each of the children. To the extent that that question mark exists, that favours the issue, or finding, that it is in X’s interests to attend the school that her mother seeks. I am satisfied, as I have said before, that there is real practical pressure and burden on the Mother in travelling with the three children to get two of the three children to school with the very considerable travel involved and with only her to undertake it.
On either party’s case, it is unquestioned that there is a benefit to the children of having a relationship with both of their parents and that consideration does not really touch or inform the issue of which school the children attend. I have considered the matters set out in section 60CC(2A) to the extent that those matters are relevant to this hearing. In the past, each party has had an intervention order against the other, but neither party pressed that history involved in the controversial events in the intervention order as informing this decision about the choice of school.
Balancing all of those matters, I am satisfied that it is in X’s interests to change school at this point in time, and I am so satisfied notwithstanding there are risks for X if I do not change the school and there are risks for X if I do. I also take into account that on the evidence that I have at this time, the Father is the parent that will be better able to cope with the children not being at the school that he or she would prefer.
They are my reasons for making that decision.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 5 December 2024
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