FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Steyn & Garrety (No 3) [2023] FedCFamC1F 617
File number(s): NCC 802 of 2013 Judgment of: HANNAM J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – FINAL PARENTING – Best interest considerations – Consideration of risk of harm – Alienation – Where the parties have been in protracted litigation for 10 years – Where this is the third tranche of parenting proceedings – Where there have already been two changes in primary care arrangements – Where the children have been profoundly damaged by the proceedings – Where the children have been in the mother’s primary care since 2019 – Where the children have not spent any time with the father or his wife since 2022 – Where the father concedes that he and his wife engaged in alienation of the mother when the children lived with him – Where the single expert recommends that the children decide where they live – Consideration of whether it would be in the children’s best interests to determine their own parenting arrangements – Where the Court finds such an order places unreasonable burdens on the children – Consideration of whether it is possible for the children to derive a benefit from an arrangement in which they have a relationship with both parents – Consideration of whether ongoing harm is inevitable if the children spend time with both parents – Where the children are at risk of further exposure to the parents’ partisan conflict – Orders for the children to live with the mother and spend very limited supervised time with the father. Legislation: Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61C(1), 61DA, 65D, 65DAC. Cases cited: Albert & Plowman [2020] FamCAFC 23
Donnell v Dovey (2010) FamCAFC 15
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Goode & Goode (2006) FLC 93-286
Garrety & Steyn [2019] FamCAFC 124
Garrety & Steyn [2021] FamCA 67
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen [2022] FedFamC1A 97
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Steyn & Garrety [2019] FamCA 180
Steyn & Garrety [2019] FamCA 190
Division: Division 1 First Instance Number of paragraphs: 370 Date of last submission/s: 9 March 2023 Date of hearing: 4-5 July; 17, 18 19, 21 October; 20-21 December 2022 Place: Parramatta Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: Gillard Family Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Bainbridge Legal Counsel for the Independent Children's Lawyer: Mr Havenstein Solicitor for the Independent Children's Lawyer: Legal Aid Nsw ORDERS
NCC 802 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARRETY
Applicant
AND: MS STEYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
28 July 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother has sole parental responsibility for the children, X born 2009 and Y, born 2011…
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- Steyn & Garrety (No 3) [2023] FedCFamC1F 617
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- [2023] FedCFamC1F 617
- Decision Date
CaseChat Overview and Summary
In the case of Steyn & Garrety (No 3), the primary issue before the court was determining the appropriate parenting arrangement for two young daughters, considering the best interests of the children as the paramount consideration. The parents, who had separated, presented alternate proposals for the children's living arrangements, with the father advocating for the children to live with him and the mother advocating for the children to continue living with her. The court was required to decide which proposal best served the children's best interests.
The court conducted a thorough analysis of the evidence presented, including the expert report from a child, adolescent and family psychiatrist, who had extensively interviewed the family and relevant professionals. The expert's opinion was that it would be damaging for the children to move to live with the father at their current ages and in their highly partisan circumstances. The expert also expected that if the children returned to live with the father, their meaningful relationships with their mother would effectively come to an end, although he believed these relationships are more likely to be rekindled in early adulthood.
After weighing the evidence and considering the best interests' considerations, the court determined that the children should continue living with their mother. The court recognised the commitment and capacity of both parents to meet the children's needs but ultimately found that the mother's proposal best served the children's best interests, taking into account the expert's opinion and the potential long-term impact on the children's relationships with their mother.
The court made orders for the children to continue living with their mother and set out a detailed schedule for the father's time with the children. The court also made orders for parental responsibility, maintaining the statutory conferral of joint parental responsibility unless otherwise ordered.
The court conducted a thorough analysis of the evidence presented, including the expert report from a child, adolescent and family psychiatrist, who had extensively interviewed the family and relevant professionals. The expert's opinion was that it would be damaging for the children to move to live with the father at their current ages and in their highly partisan circumstances. The expert also expected that if the children returned to live with the father, their meaningful relationships with their mother would effectively come to an end, although he believed these relationships are more likely to be rekindled in early adulthood.
After weighing the evidence and considering the best interests' considerations, the court determined that the children should continue living with their mother. The court recognised the commitment and capacity of both parents to meet the children's needs but ultimately found that the mother's proposal best served the children's best interests, taking into account the expert's opinion and the potential long-term impact on the children's relationships with their mother.
The court made orders for the children to continue living with their mother and set out a detailed schedule for the father's time with the children. The court also made orders for parental responsibility, maintaining the statutory conferral of joint parental responsibility unless otherwise ordered.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is which of these alternate proposals is proper having regard to the children’s best interests as the paramount consideration.BACKGROUND The mother who is 41 and the father who is 46 formed a relationship in 2008 and commenced living together a short time later. Prior to their relationship, the mother had a previous partner with whom she shares a son (“the children’s half-brother”) who is now 16 years old and continues to live primarily with the mother. In 2009 the parties’ first daughter (“the older child”) was born and their second daughter (“the younger child”) was born two years later in 2011. The parents separated in 2013 and in the months that followed, the children lived with the father and spent regular weekend and holiday time with the mother, who had moved to live a significant distance away from the father’s home. In around 2014 the father commenced a new relationship with a woman he later married (“the father’s wife”). The father and his wife have a daughter between them, who is now seven years old (“the children’s half-sister”). Also forming part of the father’s household is the father’s wife’s teenage daughter from a previous relationship (“the children’s step-sister”).[1] Both parents and their families live in regional areas outside metropolitan Sydney, a significant distance (of about five hours’ driving time) from one another.[1] The father, his wife, the children’s half-sister and the children’s step-sister are collectively referred to as “the paternal family”.Previous parenting proceedings As noted earlier, there has been a protracted history of litigation between the parents following their separation. The first set of parenting proceedings commenced by the father in 2013 proceeded to a defended hearing in December 2014. Final orders were made providing for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother each alternate weekend until the older child commenced school and thereafter for up to five weekends in each school term and for some time during school holidays. Under the 2014 final orders, the children were to also have regular telephone contact with the mother. There is no dispute between the parties that this initial parenting arrangement was fraught with difficulties and saw significant conflict and antagonism between the parents and their respective households. Changeover events in particular involved hostile interactions between the mother, the father and his wife, and at one point led to an Apprehended Violence Order (“AVO”) being sought by the father’s wife against the mother, which was ultimately dismissed following hearing. On the father’s own evidence, when the children were in his care under the 2014 final orders, he and his wife engaged in a course of alienating the children against the mother which included “involving police and the Department of Family and Community Services [as it was then known (“the Department”)] unnecessarily”[2], and other alienating behaviours such as not correcting the children when they referred to the father’s wife as “mum”. For lengthy periods of time between 2014 and early 2017, the father also withheld the children from the mother and did not facilitate their time or communication with her pursuant to court orders. [2] Father’s affidavit filed 13 October 2021, paragraph 5.
Evidence
Evidence Before The Court
On the final day of the hearing the father also filed an Application in a Proceeding seeking that the mother pay his costs thrown away as a result of the adjournment of the final hearing when it was first listed in July 2022. I noted that this application will be dealt with at the conclusion of the parenting proceedings.THE EXPERT’S EVIDENCEExpert Report The expert appointed in the proceedings is a child, adolescent and family psychiatrist who interviewed the family over a full day in February 2022 and conducted further telephone interviews with each of the parents approximately a month later. In his report the expert records that he spent 42 hours reading, cross-referencing and deliberating upon the more than 10,000 pages of documents that he was sent to read (which included court documents, the reports of the expert previously appointed to the proceedings, past judgments and documents produced on subpoena) prior to writing up the conclusions and more hours during this process of writing it up. He conducted interviews with all parties including each parent, the father’s wife and each child and then spoke by telephone with nine different involved professionals. The following is a summary of the expert’s opinion and recommendations in his 130 page (1354 paragraph) report. The expert first sets out in great detail over 66 pages the information he obtained from all sources including through interview with the family members and observations made during those interviews. In the maternal household he interviewed the mother, her friend Ms AM and a person who described herself as a “concerned citizen” who had previously been a friend of the father’s wife and had had some involvement in assisting with changeover arrangements when the children were previously living with the father. The expert also interviewed the children’s half-brother and the children themselves. So far as the father’s household is concerned, the expert interviewed the father, his wife, the children’s step-sister and half-sister and interviewed each of the children again. With the consent of the parents, the expert spoke with a clinical social worker in practice in the vicinity of the father’s home (“the father’s therapist”) and an art therapist, an occupational therapist, two psychologists (who the mother had engaged for the children), a child and adolescent psychiatrist, the principal at the children’s school and each of the children’s classroom teachers. The expert then summarises his professional observations and opinion noting that he considers some matters to be particular significance and that many matters are interrelated. The following is a summary of those opinions and observations. The expert commenced by observing that, in his view, the children are on the one hand “rich in parenting resources” as he formed the impression that each of their parents is committed to the children and to the responsibilities of parenting at the level of intention and with respect to day to day care of the children each has adequate “and in some areas strong” capacity to meet the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intelligent, relational and developmental needs.
Decision
Reasons for decision
As can be seen from the totality of this judgment, I considered the pros and cons of the father’s primary proposal, the mother’s proposal and the ICL’s proposal, having regard to each of the best interests’ considerations. In the course of that consideration, I of necessity included an assessment of any parenting arrangement in which the children are to live with the father and in this way also considered the father’s alternate proposal. In doing so I attached weight to the expert’s strongly held and consistent opinion that it would be enormously damaging for the children at their current ages and their highly partisan circumstances to move to live with the father now. As also noted it was a common theme in the expert’s evidence that if the Court is to choose an arrangement that would be developmentally best for the children, it would be that they stay living with the mother.[92] Another weighty factor in this regard in the firm expectation of the expert that if the children return to live with the father their meaningful relationships with their mother will effectively come to an end, albeit that he opines that in early adulthood these relationships are more likely to be rekindled.CONCLUSION[92] Transcript 17 October 2022, p.19 line 8; Transcript 4 July 2022, p.24 line 39 to pg. 25 line 45.Parental responsibility Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. In Goode & Goode[93] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. [93] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA of the Act. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Ratio Decidendi
Legal Principle Established
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