Stout & Hayward
[2023] FedCFamC1F 760
•15 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stout & Hayward [2023] FedCFamC1F 760
File number(s): BRC 4932 of 2022 Judgment of: BAUMANN J Date of judgment: 15 August 2023 Catchwords: FAMILY LAW – Parenting – where both parents submit that the previous final orders are no longer suitable for the child – Where the parents both seek sole parental responsibility and substantial time with the child – Where the mother has ceased the child’s time with the father due to issues relating to a step sibling of similar age – Where the father submits the mother is a psychological risk to the child – Where the parents’ communication styles are not child focussed and often result in conflict – Time to recommence immediately Legislation: Family Law Act 1975 (Cth) 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 11 August 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Aspire Family Law Solicitor for the Independent Children’s Lawyer: ELR Law ORDERS
BRC 4932 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STOUT
Applicant
AND: MS HAYWARD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 AUGUST 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the final parenting Orders made 12 September 2017 and varied by consent on 30 May 2022 are varied as follows:
2.Order 8(c) of the final parenting Orders made 12 September 2017 is discharged and in lieu the following orders shall apply:
(a)Commencing Thursday, 17 August 2023 and each alternate Thursday during school terms, the child, X born 2013 (“the child”) shall spend time with the father from after school Thursday until before school Monday, with the father (or his partner Ms B ) to collect and return the child to school;
(b)In addition to Order 3 made 12 September 2017, the father and his partner Ms B are permitted to attend the child’s sports class/training each alternate Thursday when the child is otherwise in the care of the mother;
(c)The father shall use his best endeavours, and cause any other adult in his household when the child is in his care, to ensure the child is not the subject of aggressive or sexualised behaviour or the target of inappropriate swear words or bullying, by another child in their care at that time, including the father’s partner’s child, C born 2014;
(d)The mother and father attend in person and complete the following courses and provide the other parent and the Independent Children’s Lawyer with certificates of completion:
(i)Bringing up Great Kids; and
(ii)Managing Strong Emotions.
(e)The mother be responsible for ensuring the child attends as recommended upon her counsellor.
3.That these proceedings be allocated to the docket of the Honourable Justice Howard, and be adjourned for Case Management Hearing (and the making of trial directions if required) on a date to be fixed, in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Stout & Hayward has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
X, now aged nine years, is the only child of a relationship between the father, Mr Stout, and the mother, Ms Hayward. That relationship began when the parties were in their teens, with X born to the union when the mother was 18 years of age and the father was 20 years of age. The relationship ended with a separation in early 2014 with X, who was born in 2013, only a baby. To the parents’ credit, they entered final parenting orders by consent on 12 September 2017 (“the final orders”). The orders sought to anticipate the future developmental needs for their child well into the future. In the absence of any evidence that there had been any application for either variation, enforcement or contravention for nearly five years, until the father filed the current application in April 2022, the Court is entitled to infer the arrangements ordered in 2017 have generally (but not in every way) been complied with, whist recognising some of the parents’ evidence of unhappiness with the arrangements from time to time.
As it might have been expected, each parent’s personal circumstances have changed significantly since 2017 in that:
(a)the father has re-partnered with Ms B (an educator) and their family now consists additionally of C (nine years) who is Ms B’s son of an earlier relationship, and D (one year), a child of the father’s new relationship; and
(b)the mother has re-partnered with Mr E (a tradesperson) and their family now consists additionally of F (seven years) and G (four years) who are children of Mr E’s earlier relationship, and H (born in 2023), a child of the mother’s new relationship.
The current final orders provided for equal shared parental responsibility and at the current time for X to live with the mother and to spend time with the father. Essentially:
(a)in week one, each alternate weekend from after school Thursday until 8.30 am Monday; and
(b)in week two, each alternate Thursday overnight; and
(c)from 2019, half of the school holidays with the Christmas school holidays to be week about. Arrangements for Christmas Day, Mother’s and Father’s Days as well as X’s birthday were described in the final orders.
The father initiated proceedings on 29 April 2022 seeking to vary the final orders, with his Application seeking inter alia that X live with him and that he have sole parental responsibility and that X’s time be reduced with the mother to alternate weekends and each Tuesday after school to 7.00pm. The mother’s Response filed 14 July 2022 also sought variations to the final orders, with the mother seeking sole parental responsibility and for X’s time with the father to be reduced to alternate weekends and for four days/three nights during each of the school holidays.
The case management pathway resulted in a child impact report dated 4 October 2023 as ordered on 21 July 2022. The report made clear that both parents had engaged X in discussions about future parenting arrangements and that:
15.…There was a common theme throughout the interview of [X] feeling caught in the middle of her parents and being pressured whether that be direct or indirect by both parents.
and:
20.…what is evident is that [X] is being exposed by the parents to their high level of conflict, she is acutely aware of their animosity for one another, and this is significantly impacting on her emotional and psychological wellbeing.
Despite advice given in the child impact report (at paragraphs 20) that “…it is imperative the parents refrain from any further discussions with [X] about the current court matter or the adult issues”, the subsequent family report prepared by Ms J and dated 10 February 2023 suggests both parents have not taken heed of that advice.
I should mention at this point that the Court has been assisted in this matter by the involvement of an experienced Independent Children’s Lawyer, Ms Rayment. The child impact report identified (at paragraph 27) the mother’s concerns that C is a risk to X “…as he tends to be physically and verbally violent to [X] and swears at her often.” X reported feeling safe and happy in both households, although she felt most comfortable with her mother at paragraph 31.
The child was interviewed for the child impact report on 28 September 2022 and some three months later on 11 January 2023 the child was again interviewed, and observations were made in the context of the preparation of a family report by social worker, Ms J. The report has been considered by the Court, however, like all the evidence offered during the truncated nature of this interim hearing, the reporter’s evidence remains untested. It is clear from the family report that in the opinion of the expert:
159.Both parties appear to be embroiling the child in parental dispute issues rather than normalising the child’s experiences or providing enriching experiences.
And this view was based on the examples given by the expert at paragraph 159, for example:
•When the father was informed that [Ms Hayward’s] partner, [Mr E] had allegedly stated that he “was going to murder” [Mr Stout], the father chose to take the child to the police station to report the matter which involved [X] being questioned by the police rather than the father assisting the child to understand that sometimes people say things when they are angry.
•In relation to the mother’s allegations of sexual abuse of [X] by [C], [Ms Hayward] opted to involve the child protection authorities which involved [X] being interviewed and further investigative actions by DCYJMA [sic] rather than normalising a young boy’s behaviour of exposing his genitals and providing [X] with protective behaviour management strategies such as saying no, informing an adult and promoting self-protection.
•In relation to exposing [X] to police intervention during a dispute about the pickup arrangement rather than being able to resolve the matter amicably.
At a trial, the parties will, no doubt, seek to explain their actions as being reasonable at the time. The report writer at paragraph 175 made these comments:
175.Taking all of the issues into account it seems to the writer that the most significant issue is to reduce the emotional and psychological impact that the parental dispute has on the child. It is the writer’s view that both parents appeared focussed on their own views and their ability to negotiate and resolve conflict with the other parent seems limited. It appears to the writer that the ongoing dispute may be a power struggle between the parents. To reduce the parental dispute the writer believes that a reduction in the time [X] spends with her father and that this occurs on alternate weekends from Friday afternoon until Monday morning and for half of the school holiday periods.
I make the observation, of course, that parental conflict is able to be reduced by a change in behaviour of parents and even if these parents were immature and somewhat naive at the time that the child was born, their life experiences now are such that they should be able to do better in managing parental disputes than the evidence appears to suggest. After making those comments at paragraph 175 where the family report writer discussed the variations to the orders that might minimise the dispute, there are other parts of the report which the Court has considered even at an interim hearing. I have read the child’s views and wishes as recorded at paragraphs 117 to 128 of the report and could not ignore the possibility that the child’s wishes now expressed to reduce time with the father might reflect her desire to meet the perceived wishes or hopes of her mother.
But this is not a finding but an observation of how, at any trial, the weight to be applied to the child’s wishes need to be carefully assessed where a child has been so embroiled in a dispute between the parents arising in mid-2022. No interim applications having been made to vary the final orders in the 14 months since these proceedings commenced, and Applications were transferred to this Court.
The order made by the compliance and readiness hearing Judge, in effect, says that final orders were still being complied with but that each party was alleging risk in the other parent’s home. The matter was listed before me, as Case Management Judge (Division 1), on 27 July 2023. On 27 July 2023 when the matter first came before me, I was informed that two days earlier the mother had decided that the child should not spend time with the father until some protective measures were put in place.
Accordingly, I made some directions for an urgent interim hearing to be conducted by me on 11 August 2023 – that hearing effectively initiated by the mother’s Application in a Proceeding filed 27 July 2023. The parties appeared by Microsoft Teams, with the mother represented by her solicitor, Ms Stassen; the father represented himself and I had the benefit of submissions by the Independent Children’s Lawyer, Ms K.
COMPETING INTERIM PROPOSALS
The mother sought orders set out in her Application in a Proceeding filed 27 July 22023 and comprehensive case outline filed 9 August 2023 that, essentially, X spend time with the father supervised for a period of three hours a fortnight at a contact centre and have telephone/FaceTime communication two times per week. I have considered the mother’s submissions, both orally and in the case outline, and the material relied upon as set out in her case outline.
The father sought orders set out in his Response to the Application in a Proceeding filed 7 August 2023 that, essentially, X should return to the care of the father immediately and thereafter live with him, and from the time of the return to him the child spend no time with the mother for a period of three months except for two occasions each week when X would communicate with the mother by telephone/FaceTime. After the three month moratorium, the father proposed X’s time with the mother resume by way of fortnightly supervised visits. I have also considered the father’s submissions both orally and in the case outline and the material relied upon is set out in his case outline.
The Independent Children’s Lawyer relying heavily upon the recommendations of the family report writer proposed that the final orders be varied so that the child spend each alternate weekend with the father from 3.00pm or after school Friday to 9.00am or before school Monday, but with the first recommencing visit occurring from 9.00am Saturday rather than after school Friday. I considered the oral submissions of the Independent Children’s Lawyer.
PRINCIPLES
It is perhaps trite to repeat the remarks made at the hearing by me that consistent with authority in these truncated proceedings (see Goode & Goode (2006) FLC 93-286 and Banks & Banks (2015) FLC 93-637, for example) where, as here, evidence has not been tested by cross‑examination, findings should be couched with great circumspection no matter how firmly a Judge’s intuition may suggest that the findings will be borne out after a full testing of the evidence (see SS & AH [2010] FamCAFC 13 at [88] and [100]).
Where both parents identify risk they say exists in the other parent’s household, this interim decision identifies the clash between section 60CC(2)(a) and (b), as well as some of the historical parental conflict which the mother says goes back many years.
RISKS IDENTIFIED BY THE PARENTS
The mother maintains that X is at risk of physical abuse and sexual abuse at the hands of C and further emotional abuse by the father and his partner, Ms B, arising from not only their – either rejection or minimisation of the risk C presents but also their inability to properly manage C’s behaviour. It is acknowledged that nine year old C has been diagnosed with attention deficit hyperactivity disorder (ADHD) and is prescribed medication to assist in managing his behaviour.
The father says that the mother’s behaviour demonstrates she is exposing X to emotional and psychological harm and is not supporting, in fact, is undermining the child’s relationship with him and his family unit.
The Independent Children’s Lawyer’s submissions are that the ongoing conflict between the parents, of which the child is well aware now, is a context for the competing proposals and agreed with the Court’s observation that the parents’ competing proposal evinces a lack of insight as to the child’s best interests. Accepting that C’s behaviour needs to be carefully and sensitively managed so as to ensure X does not suffer or feel abuse or bullying, Ms K contended that the Court should reduce the physical time X spends in the father’s home, but the risks in each of the households, as asserted by the parents, does not reach an unacceptable level so as to justify either supervised time (as the mother proposes) or change of residence and three months moratorium (as the father proposes).
DISCUSSION
In considering what orders should be made on an interim basis where the time has now ceased for some weeks, the Court takes into account at least the following matters:
(a)Whilst it is not possible to be certain as to whether C’s physical interactions with X are more in the form of aggressive play, other than some behaviour designed to hurt X, X is entitled to be protected from either. Similarly, it seems likely that C has used inappropriate language directed towards X, and this also makes the child uncomfortable, quite naturally;
(b)Whether the father and/or C’s mother, Ms B, have minimised C’s behaviour or not, what should be clear to them is that X has expressed dislike as a result of his actions, and they are obliged to consider her feelings. Not only must they be hyper vigilant about C and his, at times, behaviour and inappropriate words, including his sexualised manner, they need to demonstrate to X that they are not simply dismissive of her concerns. If, as X has informed her mother, the father and his partner engaged the child in a discussion about how statements made by her might affect C’s feelings is correct, then it reveals a lack of insight into how X’s views about their lack of support for her is distressing her;
(c)The mother’s reactions, and seen in the context of her evidence of difficulties in the relationship with the father as far back as 2016, seem at times to be an overreaction. In saying that, any parent cannot ignore or simply dismiss the feelings that X is expressing about C and her perception that the father does not believe her or does not understand her feelings;
(d)The polarised views demonstrated by the parents in their primary proposals arguably reveals a type of power struggle (as noted by the report writer) and a lack of insight into the effect on X of a significant change in the parenting arrangements, where she would have an interrupted relationship with the other parent and also the siblings in their parents’ home – including those children who she may well treat as siblings;
(e)As a result of the regime created by the final orders, every Thursday, the child was in the father’s care, and, at least, for some years, these evenings have included sport. My sense is that the child enjoys this activity, and it is one in which the father and his partner have been actively involved – perhaps more so than the mother. That is not a criticism of the mother but merely a reflection of how the father has used the time the child, under the final orders, spends with him. I would, on an interim basis, be loath to make orders to reduce significantly this bonding experience for X and the father and his family;
(f)In my assessment, accepting for the present that some of C’s behaviour has been entirely inappropriate, the risk he presents can be managed in the father’s household by being aware of the risk and to deal with the opportunities that arise, should there be behaviour from C which exceeds appropriate boundaries. For example, separate bathing times would be necessary and indicated. The father and his partner being seen by X to correct and properly manage any outbursts or verbal or physical aggression by C would help her. I am not satisfied, at this time, on the evidence, the father and his partner are supporting C to act inappropriately towards X. But all children, even those without a diagnosis of ADHD, need to have behaviour that is not acceptable firmly and quickly corrected;
(g)It is quite possible that the mother’s desire to protect X, as she sees it, is a manifestation of the increasing lack of trust and respect that exists between the parents – which seems to have now included the parents’ new partners. Some of the text/email exchanges reveal a lack of child focus, even if the child has not seen them; and
(h)I agree with the Independent Children’s Lawyer that both parents would likely benefit from the courses nominated by the Independent Children’s Lawyer in her proposed minute, and with both parties indicating to me at the hearing that they would attend those courses, I will so order.
CONCLUSION
Time must recommence immediately. in fact, it will recommence from this Thursday. It is fortunate the Court has been able to list this matter so quickly, as often these matters can, through court delays, be exacerbated. I understand that the Independent Children’s Lawyer proposes the first visit since time ceased some three weeks ago should begin cautiously, but on balance, I see no reason to do so. I am persuaded that it is in the best interests of the child to slightly reduce time with the father by no longer including the alternate Thursday overnight, however will continue to prescribe the father’s alternate weekend time commencing on a Thursday, which has the benefit of returning to a very familiar routine for the child.
One effect of my orders is to reduce the number of changeovers each fortnight. I think that will be a benefit to the child. Nearly all changeovers are likely now to take place at school, other than for school holidays. If, consistent with the recommendations of the family report writer, the alternate weekends were to be for the duration of only three nights, and they start on a Thursday, then the time would end on the Sunday. In my assessment, time should continue to before school Monday, as has been the case for some years now. The continuation of a Thursday to Monday alternate weekend regime would preserve the opportunity for the father to engage with X’s school, including assisting her with some of her homework, and that could include engaging with her peers at school.
I will order the father and/or Ms B be permitted to attend the child’s sport on the alternate Thursday, when the child will now be in the care of the mother. If it suits the mother and the child for the father to take X to sport both weeks, they can make those arrangements between themselves. The evidence does not persuade me at this time on an interim basis that it is in the best interests of the child to reduce the amount of school holiday time she spends with the father. In that regard, I was told at the interim hearing that the last school holiday period in June was conducted for an almost week about basis with each parent. I will, as the mother submitted, make an order, as difficult it may be to enforce, that requires the father to restrain, to the best of his ability, C from engaging X in overly physical interactions and ensuring he does not speak inappropriately towards her.
I do not think it is in the best interests of this child, X, to expedite the matter to an early hearing – even if the Court was able to do so – which, frankly, it cannot. It is to be hoped that these parents, who have much greater life and parent experience than they had when they separated over nine years ago, and with the benefit of the education and tips from the courses they are now ordered to complete, may improve their capacity to co-parent. Whether or not it is in the best interests of the child and reasonably practicable for an equal-time arrangement, which, at one point, the father has been seeking, is too early to predict. I intend to allocate this matter to the docket of the Honourable Justice Howard, who, at a time suitable to his Honour, will relist the matter for a case management hearing and ascertain at that time an appropriate timetable for a final hearing, if still required.
For completeness and on an interim basis, I am not satisfied that it is in the best interests of X to give sole parental responsibility to either parent. The order for equal shared parental responsibility as set out in the final orders, therefore, shall remain in full force and effect. So, for the Reasons given, the order I make are the orders which are set out at the commencement of these Reasons.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 18 September 2023
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