Taggart & Kapala
[2023] FedCFamC1F 287
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Taggart & Kapala [2023] FedCFamC1F 287
File number(s): BRC 13088 of 2021 Judgment of: HOWARD J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the parents consent to the making of final orders – Where the ICL neither consents nor opposes the making of the final orders – Where the Court considered risk factors identified in some of the evidence – Where final orders were made with the consent of the parents. Legislation: Family Law Act 1975 (Cth), Part VII, ss 60CC, 65DAA Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 23 March 2023 Place: Brisbane Solicitor for the Applicant: Barton Family Lawyers The Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors ORDERS
BRC 13088 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TAGGART
Applicant
AND: MR KAPALA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
23 MARCH 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting plans, parenting orders and/or undertakings be discharged.
PARENTAL RESPONSIBILITY
2.That the Mother shall have sole parental responsibility for the long-term care. welfare and development of the children X born in 2014 and Y born in 2017 ("'the children"') including but not limited to the following: -
(a)the children's names;
(b)the children's religious and cultural upbringings;
(c)the children's schooling, including decisions about the type of schooling and the
(d)schools that they shall attend; and
(e)the children's health, including:
(i)surgery, hospitalisations, specialist and medical treatment required by the children for any serious injury, illness or disability; and
(ii)psychological, psychiatric or other therapeutic counselling for the children.
3.That mother and the father are to consult with each other about decisions to be made in the exercise of the mother's parental responsibility as follows:
(a)the mother shall inform the father about the decision to be made who will respond within seven (7) days unless an urgent decision is required;
(b)the mother shall consider any response provided by the father;
(c)they shall consult with each other on terms that they agree; and
(d)the mother shall inform the father of the decision and the reasons for it within seven (7) days of the decision being made.
4.That notwithstanding the provision in Orders 2 and 3, the parties each exercise sole parental responsibility for the day-to-day care, welfare and development of the children during those times the children is in their respective individual care.
5.For the avoidance of any doubt, the mother and the father shall each be required to jointly agree upon any medical appointments, sporting commitments, and extracurricular activities or similar that occur during the children's time with the father, or require the father to financially contribute towards the same.
6.That both parents agree to comply with the recommendations of the children's medical practitioners.
LIVING ARRANGEMENTS
7.That X born in 2014 and Y born in 2017 (“the children”) shall live with the Mother.
8.The children shall spend unsupervised time with father at all such times as may be agreed in writing between the mother and the father and failing agreement, as follows:
(a)From the date of these Orders, with the father from the conclusion of school on Friday (4.30pm if a non-school day), until 4.30pm on Sunday, and so for each alternative week thereafter.
(b)That the children shall spend time with the Father during each Queensland gazetted school holiday period, for five (5) consecutive nights, and in relation to the same:
(i)That unless the Mother and the Father can agree in writing as to when the time shall occur, holiday time between the children and the father shall occur from 9.00am on the first Tuesday of the relevant gazetted holiday period and conclude at 4.30pm on the immediately following Sunday.
(ii)That for each December/January Queensland gazetted school holiday period, the children shall spend time with the Father on two (2) occasions, for five (5) consecutive nights; and
(iii)The Mother and Father agree that the last block of five (5) nights that the children shall spend time with the Father in Order 8(b)(ii) do not fall in the week prior to school commencing.
SPECIAL OCCASIONS
9.That Orders 7 and 8 (inclusive of subparagraphs) be suspended during special occasions with the children to spend time with the mother and father as agreed in writing and failing agreement as follows:
Christmas
(a)Commencing in 2023 and each odd-numbered year thereafter, with the father from 1:00pm on Christmas Eve until 1:00pm on Christmas Day and with the mother from 1:00pm Christmas Day until 4:30pm on Boxing Day.
(b)Commencing in 2024 and each even-numbered year thereafter, with the mother from 1:00pm on Christmas Eve until 1:00pm on Christmas Day and with the father from 1:00pm Christmas Day until 4:30pm on Boxing Day.
Easter
(a)The children shall spend time with each parent in accordance with ordinary arrangements.
Mother’s and Father’s Day
(a)That, if the children are not already in the care of the father, the children shall spend time with the father on Father’s Day from 9:00am until 4:00pm.
(b)That, if the children are not already in the care of the mother, the children shall spend time with the mother on Mother’s Day from 9:00am until 4:00pm.
Birthdays
(a)That, on each of the children’s birthdays, both children will spend time with the mother and father as follows:
(i)On school days, with the parent the children are not ordinarily spending time with, to collect the children from school at the conclusion of school day/3:00pm until 5:00pm; and
(ii)On non-school days, with the parent the children are not ordinarily with, from 10:00am until 1:00pm.
CHANGEOVER
10.Unless otherwise agreed, for the purposes of changeover or specified in preceding Orders, changeover shall occur as follows:
(a)When time for the children with either parent is to commence at the conclusion of school, the changeover location shall be the children’s schools.
(b)That during non-school days, for the purposes of changeover the parties are to meet at a mid-way point between the parents’ respective residences, taken to be B Service Station, C Street, Suburb D QLD.
11.That at changeovers, each party shall return to the other party the children’s, belongings and any clothing or shoes supplied by the other parent in a clean condition as far as reasonably practicable.
TELEPHONE COMMUNICATION
12.That the children be at liberty to contact either parent at any reasonable time that either of the children express a wish to do so, and in that event, the parent with whom the children is residing with shall facilitate the children contacting the other party by telephone and/or video call, and by initiating the call if the children are unable to use their own devices.
13.That in addition to the above times, the children shall be at liberty to communicate with the parent they are not with by telephone and/or video call, provided that such calls as are initiated by the parent who is not with the children, between 6:00pm and 6:30pm each Tuesday and Thursday, and in relation to the same:
(a)once made, these telephone or video calls may have a duration of up to thirty minutes, depending on the wishes of the children participating in the call;
(b)the telephone or video calls are to be placed by the parents to the children via their own devices. The other parent should be contacted by the parent who is initiating the call if they are unable to contact the children;
(c)each parent must continue to maintain a mobile telephone service to facilitate both telephone calls and video calls with the children; and
(d)each parent must ensure that the children have privacy during any conversations between the children and the other parent.
PASSPORTS & OVERSEAS TRAVEL
14.That the children’s passports, if and when obtained, are to be held by the Mother.
15.That at any time that the children’s Australian passport require renewal or reissue:
(a)The parent in possession of the children’s existing passport shall forward the relevant Passport Application to the other parent no less than two (2) months prior to the expiration date of the existing passport;
(b)The other parent shall sign the Application and return it to the parent making the Passport Application within twenty-one (21) days;
(c)That the costs of such application be shared equally between the parents; and
(d)That should either parent fail or refuse to execute any document required for the Passport Application in accordance with these Orders, the requirement for that parent’s signature shall be dispensed with and an Australian passport issued for the children.
16.That the Mother and Father be at liberty to travel interstate and overseas with the children during the time which they are spending time with the children, either in accordance with these Orders or by the written agreement of both parents.
17.That unless otherwise agreed between the parents in writing, such interstate or overseas travel shall be on the following conditions:
(a)that the travelling parent provide the other parent with not less than three (3) months’ notice in writing of any such intended overseas travel;
(b)that upon the father giving notice to the mother in accordance with Order 17(a) the mother shall provide the children’s passport to the father at changeover on the first occasion following the date the father has given the required notice;
(c)that the travelling parent provide a copy of the return flight bookings and planned itinerary to the other parent not less than four (4) weeks prior to any such intended travel;
(d)that the travel period be for a total duration of not more than four (4) weeks, with not more than 1 week of any such travel period occurring during a school term; and
(e)that the travelling parent provide the other parent with a phone number on which the children will be contactable during the travel period.
INJUNCTIONS
18.That at all times hereafter, the parents are hereby restrained by injunction and are required to do the following:
(a)respect the privacy of the other parent and refrain from questioning the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence of hearing of the children and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or the presence of the children;
(d)not denigrate or insult the other parent’s extended family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent’s extended family in the hearing or presence of the children;
(e)refrain from threatening, intimidating or swearing at the children;
(f)refrain from discussing or participating in anything to do with a sexual nature in front of the children;
(g)refrain from any physical discipline of the children.
(h)refrain from relocating the residence of either parent more than a ninety (90) minute drive by car from the residence of the other parent without first obtaining the written agreement from both parents; and
(i)only take the children overseas to countries that are a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, except for the purpose of transit on a recognised international air route.
COMMUNICATION BETWEEN THE PARENTS
19.That unless in cases of emergencies, the parties shall communicate by way of text message or email, unless otherwise agreed between the parties.
EXCHANGE OF INFORMATION
20.That both parents shall:
(a)keep each other informed at all times of their residential address, telephone number/s including mobile telephone numbers and email addresses and advise the other parent of any change to such details forthwith and in any event by no later than twenty-four (24) hours of the change occurring; and
(b)notify each other if the children will be sleeping in a location for more than 24 hours outside their normal residence.
21.That both parents shall keep the other parent informed at all times as to the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other health professionals attended upon by the children within forty-eight (48) hours of any appointments.
22.That both parents shall inform the other parent of any serious medical condition, significant health issue or illness suffered by the children as soon as reasonably practicable and in any event within twenty-four (24) hours and in the event the children attend hospital for any illness or injury the other parent shall be notified within two (2) hours.
23.That these Orders shall be sufficient authority for the children’s treating practitioners and specialist practitioners or other health practitioners to provide any and all information relating to the children to both parents however shall not be taken to discharge the parent’s obligations pursuant to these Orders to keep each other informed of such information.
24.That both parents hereby authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates obtained by the children and any newsletters, notices or other correspondence, documents or information relating to the children (at the requesting parent’s cost).
25.That both parents shall keep the other parent informed of all sporting, cultural, artistic, developmental or other community activities or other extra-curricular activities/events including any associated concerts, competitions, training or meetings etc. whether arranged through the children/s schools or independently outside of school, and both parents shall be entitled to attend.
DISPUTE RESOLUTION AND REVIEW OF THESE ORDERS
26.That the process to be used for resolving disputes about the care arrangements for the children, or the terms or operation of these Orders, shall be as follows:
(a)the parents shall consult with a Family Dispute Resolution Practitioner to assist in resolving any dispute or reaching agreement about changes to be made;
(b)the parents shall equally share the cost of the Family Dispute Resolution Practitioner;
(c)that in the event the parents cannot agree on a Family Dispute Resolution Practitioner, the father shall nominate three practitioners within seven (7) days of their inability to agree and advise the mother in writing details as to each practitioner’s fees, experience and availability;
(d)that the mother shall choose one the listed practitioners within seven (7) days of receipt of the list;
(e)that if the mother fails to choose a practitioner within seven (7) days, then the father may choose; and
(f)that both parents are to attend upon the nominated Family Dispute Resolution Practitioner and endeavour to reach agreement in respect of the matters in dispute.
27.Unless there are circumstances of urgency, before any application is made to a Court for a variation of these Orders, the parents are to take into account the changing needs of the children and to take the steps referred to in Order 26 herein.
28.That a copy of the affidavit and report of Dr G be sent to Mr F, the mother’s treating Health Professional.
IT IS NOTED
A.Both parents intend for this care arrangement to provide the children – but particularly X – the stability and structure required to best support his complex health needs.
B.That the mother and father each appreciate that X requires regular medication, and the father shall attend to communicating with X’s doctor to enable him to obtain X’s medications, at his own expense, for when overnight time between the children and the father shall commence.
C.The mother and father each appreciate that granting the father access to obtain regular medication for X may take some time, and in the interim, the mother shall provide any required medication for X at changeover.
IT IS FURTHER NOTED
D.That the Applicant and Respondent both consent to the making of this Order. The Independent Children’s Lawyer did not oppose the making of the Order, but also did not consent.
E.The numbering of these Orders has been varied by 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).
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 Taggart & Kapala has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 23 March 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The application before the Court relates to parenting proceedings. The applicant mother is Ms Taggart, born in 1984. The respondent father is Mr Kapala, born in 1989. The couple commenced cohabitation in about 2013 and they separated on a final basis in about March 2018. They have two children. The oldest is X, a boy, born in 2014. The second child is another boy, Y. Y was born in 2017. The current operative parenting order is an order made, with the consent of the parties, by a Judicial Registrar on 24 November 2022, but that interim order was amended by order of a Senior Judicial Registrar on 17 March 2022.
By those interim orders, the children were living with the mother and, by the most recent order, the father was to have unsupervised time with the children on alternate weekends, with the time gradually increasing from day time only on Saturday to from conclusion of school Friday to Sunday afternoon. That was the interim order. The parents, to their credit, have been able to reach an agreement on a final order. In relation to the major issues – the parents’ views are reasonably similar.
The parties have agreed on final orders that would see the mother have sole parental responsibility in relation to certain aspects, with another order that requires the mother to consult with the father. The children, by the orders, will live primarily with the mother and spend time with the father as agreed in writing between the parents. But if there is no other agreement, then they will spend time with their father from after school on Friday until Sunday afternoon each alternate weekend. There is also holiday time contemplated and set out in the proposed order. The proposed order, which has been signed by the parents, will be Exhibit 1 in this hearing.
The parents, as I say, have signed the order. The Independent Children's Lawyer, Mr Field, has taken the view that he does not oppose the making of the orders, but he is not willing to consent to the making of the orders, because he is concerned about certain evidence contained in an affidavit annexing a report from Dr G, psychiatrist. The affidavit, which was filed on 20 December 2022, identifies certain risk factors by Dr G in relation to the mother, and those issues are contained, for instance, at pages 19, 20 and 21 of 24 in the report.
The risk issues identified by Dr G concerning the mother are the risk of parental alienation and co-dependency. The doctor notes that she had only assessed the mother and not the children and did not see the mother and the children together. The doctor notes, at page 19:
However, the risk of parental alienation, and co‐dependency is of great concern. Her risk to the children was assessed as significant in terms of potential emotional abuse, coercion, emotional instability, and incongruency that will impact on her parenting skills and boundary setting.
While it is natural for parents to want to protect their kids from physical or emotional harm, [Ms H’s] parenting appears to execute extremely high levels of control with subconscious parental alienation.
I note for the record that the reference to Ms H is, of course, the mother. The mother’s maiden name is Taggart, but she has married a Mr H since separation with the father. I have also noted the other concerns listed by the doctor and the comments by the doctor in relation to the capacity of the mother to parent and so on. The situation is that the children have been spending, for this last year, unsupervised time with their father every second weekend.
Notwithstanding the views expressed by Dr G, the evidence from the father, Mr Kapala, is that the children have been spending unsupervised time with him since November 2022. The children enjoy their time with the father. The children are happy to come to see and spend time with the father. This is a good sign. It indicates to the Court that the mother is making sure that she prepares the children properly to go and spend time with their father. Whilst it may be the case that the doctor was able to highlight, or to pinpoint, some evidence that caused her to think that there was a risk of parental alienation, so far as matters are presently concerned, the children, from the evidence I have just heard from Mr Kapala do not appear to be displaying signs of parental alienation.
In any event, these risks have been highlighted. However, the risk can be managed. The risk can be ameliorated because the mother already sees a psychologist once a month. Mr F is the mother’s Psychologist. He is based in J Town. That is the same town that the mother lives. The mother has been seeing Mr F, consulting him on a professional basis, for just under two years. Mr Colwill, solicitor, appears today for the mother, and has suggested that the Court make an order directing that a copy of the affidavit and report of Dr G be sent to Mr F, so that he can have access to that evidence to assist him in treating the mother. The father, Mr Kapala, agrees with that approach, and it is a sensible approach. I will make that order.
To my mind, the fact that the mother sees a psychologist once a month, the fact that a copy of Dr G’s report will now be sent to the psychologist, combined with the fact that the children are spending unsupervised time with their father and it is going well, leads me to conclude that there will be sufficient safeguards in place to ameliorate any risk to these children of the kind outlined in Dr G’s report.
There were other risk factors identified in earlier evidence. There was, indeed, a report from Dr G in relation to the father, known as a “Sexual Offending Risk Assessment”. At page 27, the conclusion was - no significant risks were identified during Mr Kapala’s assessment. And she was of the opinion that the father should have unsupervised access to his children, which should gradually increase over time to support the development of the positive and nurturing relationship with both his children.
I also note the recommendations of the family report writer, Ms E, filed 13 July 2022. Those recommendations included that there be a sexual offending risk assessment. That has been done. I have just read the conclusion of Dr G in relation to the father in that regard. To my mind, therefore, the orders proposed between these parents are in the best interests of these children. I have had regard to Part VII of the Family Law Act 1975 (Cth) (“the Act”). In particular, s 60CC(2) and s60CC(2A) of the Act, dealing with matters of risk so far as children are concerned.
I am satisfied that any matters relating to risk have been addressed in relation to both parents. There is evidence from Dr G in relation to the risks that had been identified or considered in relation to the father. And so far as the mother is concerned, my view is that the steps that are being taken, including the mother’s continued attendance upon Mr F and the provision of the report of Dr G to Mr F, will be sufficient to ameliorate any risk identified by Dr G.
In the particular circumstances of this case, noting that this has not been conducted as an adversarial trial, but merely a matter brought to the Court, where the parents have agreed on orders, but the Independent Children's Lawyer had some reservations about consenting to the order, it is not necessary for the Court to go through and make findings in relation to every aspect referred to in s 60CC of the Act. It is never the case that the Court is required to do that.
I have highlighted certain risk issues that have been brought to my attention. I have had regard to evidence that will address those issues. I will be making orders that will address those issues, in particular, the order for the provision of the report of Dr G, in relation to the mother, being sent to Mr F. The parties have agreed in relation to parental responsibility. The parties have agreed in relation to the time orders, including holiday time. The orders themselves are otherwise quite comprehensive and uncontroversial.
I note paragraph number 27 in the draft order. I would point out that that order, of course, would remain subject to, and the parties would remain subject to, the rule in Rice & Asplund (1979) FLC 90-725 before there could be any variation of these final parenting orders. But in the circumstances, my view is that the orders are in the best interests of these two young children. I should add that there is no need for the court to consider sections such as 65DAA, noting the parties’ agreement in relation to the parental responsibility order. Final orders as per the draft, initialled and placed with the court papers.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 21 April 2023
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