TEALER & CEDERS
[2020] FCCA 2338
•27 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TEALER & CEDERS | [2020] FCCA 2338 |
| Catchwords: FAMILY LAW – Interim Parenting – young child - competing live with applications – significant disruptions to child’s time with mother – allegations of risk – assessment of risk. |
| Legislation: Family Law Act 1975 (Cth), s.65DAC |
| Cases cited: Cottey & Backey (No 2.) [2020] FamCAFC 206 |
| Applicant: | MS TEALER |
| Respondent: | MR CEDERS |
| File Number: | PAC 374 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 12 August 2020 |
| Date of Last Submission: | 12 August 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 27 August 2020 |
REPRESENTATION
| Appearing for the Applicant: | Ms Chiang |
| Solicitors for the Applicant: | King & York Lawyers |
| Appearing for the Respondent: | Ms El Baba |
| Solicitors for the Respondent: | El Baba Lawyers Pty Ltd |
PENDING FURTHER ORDER
Orders 1, 3, 4, 5, 6, 8, 9 and 11 of the Orders reached by consent on 29 November 2018 are discharged.
The father shall have sole parental responsibility for the child X born in 2015 (“X”).
X shall live with the father.
X shall spend time with the mother:
(a)Commencing 27 August 2020 from after school or 3pm Thursday to before school or 9am Tuesday each alternate week;
(b)From 5pm on Christmas Eve to 5pm on Christmas Day;
(c)From 3pm to 5pm on X’s birthday in the event X’s birthday falls on a day that he is not already spending time with the mother;
(d)During the New South Wales gazetted school holiday periods as follows:
(i)For the first week of the first term break;
(ii)For the second week of the second term break;
(iii)For the first week of the third term break;
(iv)For the fourth, fifth and sixth week of the fourth term break.
(e)And as otherwise agreed between the parties in writing.
For the purpose of Order 4 above changeover shall take place at:
(a)X’s school; or
(b)Suburb B McDonalds located at Street C, Suburb B, New South Wales.
The parties are to use their best endeavours to facilitate changeover at the times stipulated or as otherwise agreed.
In the event that either party is late to changeover, the party must provide reasonable notice to the other party in writing and only advise using by telephone call in cases of emergency.
Both parties are to facilitate the child’s attendance at D School, Suburb E.
For the purpose of communication, the mother is to communicate with the child on each day the child is not spending time with her:
(a)Between 6.30pm and 7pm via mobile telephone call; and
(b)At such other times as agreed between the parties in writing.
The mother is restrained by injunction from physically disciplining X or permitting or allowing any third party to do so.
The parties are restrained by injunction from discussing the orders with, or in the presence or hearing of, X.
THE COURT FURTHER ORDERS THAT
Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born in 2015 and request the Legal Aid Commission of NSW to provide such representation.
The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.
Fourteen days prior to the compliance check the parties are to file and serve:
(a)Any Amended Application;
(b)Any Amended Response;
(c)Any Amended Financial Statement;
(d)A single, consolidated trial Affidavit relevant to their case; and
(e)Any Affidavits by supporting witnesses upon which they rely.
No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
Twenty-one days prior to the Final Hearing the parties are to notify the Family Report or Child Dispute Conference Memorandum writer (“writer”) of the dates for Final Hearing and advise them that they are required for the purposes of cross examination.
In the event that no such notice is given to the writer or the writer is not available, the Family Report or Memorandum will be admitted into evidence without cross examination, subject to any objection.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
The matter is listed for call over and possible allocation of a hearing date at 9.30am on 23 April 2021.
Seven days prior to the compliance check, each solicitor with the carriage of the matter (or if a party is not legally represented that party himself/herself) is to file and serve an affidavit of compliance setting out the following:
(a)Confirming the matter is ready to take trial dates;
(b)Confirming the trial directions have been complied with;
(c)Confirming that all other directions readying the matter for trial have been complied with;
(d)If there is non-compliance the reasons for the non-compliance;
(e)Why a costs order should not be made against the party who has failed to comply with the Court’s directions; and
(f)Annexing the jointly completed Call-Over sheet.
Pursuant to section 13C of the Family Law Act1975, the parties shall within 7 days do all things to enrol into the ‘1, 2, 3 Magic’ or ‘Positive Parenting’ course and each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such course.
The parties are granted liberty to seek to have the matter restored to the list on 48 hours’ notice.
IT IS NOTED that publication of this judgment under the pseudonym Tealer & Ceders is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 374 of 2018
| MS TEALER |
Applicant
And
| MR CEDERS |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are competing interim applications brought by each of the parents for their child, X born in 2015 (“X”) to live with them.
X has not spent any time with his mother since 19 February 2020. This is because notwithstanding interim orders made by consent in November 2018, the father has withheld X from the mother in circumstances where he says that there would be an unacceptable risk of harm to the child if he was to continue to live with the mother pursuant to those orders.
The father filed an Application in a Case on 15 April 2020 seeking for those orders to be discharged and for X to spend supervised time with the mother. At or around the same time, the mother filed an Application in a Case on 20 April 2020 seeking for the child to live with her and spend alternate weekends with the father. Both applications were listed to be heard on 12 August 2020.
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed. Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.
The present proceedings raise the issue of competing live with applications, and an application for supervision of the mother’s time with the child. In those circumstances, a risk assessment is to be undertaken. This is done by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.
Between the time of the filing of the interim applications and the interim hearing, the Family Report has been released. That report was relied upon by the father in support of the orders he seeks on an interim basis. The report writer did not conduct any observations between the parents and the child, or interview with the child.[1] The Court also has the benefit of the Child Dispute Conference Memorandum dated 2 May 2018.
[1] Said to be due to COVID-19 restrictions
There are a few agreed facts between the parents and they are as follows:
a)The father was born in 1990.
b)The mother was born in 1991.
c)The parties do not agree as to the date of the commencement of their relationship, however, they agree that they have been together since at least 2012.
d)X, the only child of the parties, was born in 2015.
e)On 24 September 2017, the mother was arrested and charged with common assault. The father was the alleged victim of the assault. An Apprehended Domestic Violence Order (“ADVO”) was made on an interim basis with the father named as the person in need of protection. In August 2018, after a two day contested hearing, the mother was found not guilty of the charge of assault and the application for an apprehended domestic violence order was dismissed.
f)Orders were made by consent on 29 November 2018, that from 10 January 2019, the child was to live with the parents in a shared care arrangement, 8 nights per fortnight with the father and 6 nights per fortnight with the mother.
g)The child has not spent any face to face time with the mother since 20 February 2020.
Who should have parental responsibility for X?
An extraordinary issue arises in these proceedings, emphasising the depth of the parental conflict. Each of the parents had enrolled the child into a different primary school and the child attended two primary schools for a short period of time in early 2020, his first year of formal schooling[2].
[2] X turned five in 2020. The Court takes judicial notice of the fact that in New South Wales, children can be enrolled into a public school if they turn 5 on or before 31 July that year but that the they must be enrolled by their 6th birthday. Therefore, there was no legally compelling reason for either parent to enrol X into a primary school prior to his sixth birthday.
Submissions were made in the mother’s case that the father had, despite the orders for equal shared parental responsibility, without consultation or agreement with the mother enrolled the child at D School, Suburb E after the mother had enrolled him at F School.[3]
[3] Emphasis added
Indeed, the mother asserts that in early 2019 she made enquiries about F School, being the school in close proximity to the mother’s residence. The mother says that she spoke to the principal and others, and that she formed the view that the school was an appropriate school for the child to attend. The mother says that “In or around July 2019 I enrolled X at F School.” Confirmation of the enrolment was received on 2 September 2019. The mother asserts that she advised the father of the child’s enrolment but that he reacted angrily. It is not clear when the father was informed of the child’s enrolment at F School.
The mother then asserts that in November 2019, the father informed her that he had enrolled the child at D School “despite knowing that I had already enrolled X at F School”. It appears[4] on the mother’s evidence that this was the first time she was told about the child’s enrolment at D School.
[4] A reference to a matter appearing on the evidence is not to be seen as a finding.
The evidence suggests that on 2 August 2019, the father sent to the mother a copy of the letter dated 25 July 2019 from D School, being the offer of enrolment for the child to attend that school. It is not clear when the father accepted the offer of enrolment, nor whether the mother notified the father that she objected to the child’s enrolment. It certainly appears though that the mother was advised as early as 24 July 2019 that the father was proposing to enrol the child at D School.
Certainly, on 2 September 2019 F School, by letter dated the same date, notified the mother that X had been accepted for enrolment for 2020. The offer of enrolment for D School, Suburb E appears to pre-date this acceptance for enrolment at F School. It is not clear when exactly the mother applied for the child to be enrolled into F School but it was at or around the same time as according to her evidence it was “in or around July 2019”.
Interim decisions are by their nature difficult due to the limited evidence before the Court. The Court relies on legal representatives to be candid. It does not assist the course of justice for legal representatives to make submissions that are loose and/or contrary to the evidence.
It was submitted by the mother’s legal representative that the mother had “consulted” with the father prior to enrolling the child. The evidence in the mother’s case does not support the submission that the mother had “consulted” with the father in any meaningful way and there certainly appears on the mother’s evidence to have been no joint decision as to the child’s enrolment at F School.
Likewise the evidence in the father’s case does not support a position that there had been any joint decision making in respect of the child’s enrolment at D School. However, what the evidence in the father’s case does, is that it shows that on an unknown date prior to 24 July 2019, the father via a text message, notified the mother that “X has been formally accepted to attend D School, Suburb E”.
The effect of an order for equal shared parental responsibility is taken to require the decision to be made jointly by the parents who share parental responsibility[5]. The order is taken to require each of the parents to consult the other in relation to the decisions to be made and to make a genuine effort to come to a joint decision. It does not appear on any of the evidence that either of the parents, in enrolling the child into primary school, complied with their obligations pursuant to s.65DAC(3) of the Family Law Act1975 (Cth).
[5] s.65DAC of the Family Law Act1975 (Cth)
A further issue in respect of the exercise of parental responsibility flowing into relevant matters in respect of where the child should live, is the fact of the child attending upon a psychologist, Ms G. This is discussed in more detail later in these Reasons for Judgment.
Both parents ask the Court to make an order for sole parental responsibility in their favour. It was submitted on behalf of the mother that the communication between the parents is in effect so broken down that they cannot reach agreement about long term decisions concerning X.
The Court finds that in the circumstances of this child, it is not appropriate for the presumption of equal shared parental responsibility to apply and it is appropriate for the order for equal shared parental responsibility to be discharged. For X’s sake and so as to reduce the child’s exposure to parental conflict, an interim order for the parent with whom the child lives to have parental responsibility will be made.
Where Should X live in the interim period?
The mother’s own evidence is confusing and at times contradictory, as are some other aspects of the evidence relating to the mother.
Exhibit 2 in the interim proceedings is a police record in respect of a report to the police, apparently made by the mother on 30 January 2020. There is no incident alleged in the mother’s affidavit as having occurred at or around this time.
According to Exhibit 2, the mother informed the police that during changeover on 30 January 2020, the father began to swear at the mother and aggressively insult her, that he then pushed her against her car and choked her and strangled her on the throat. After being asked if she was willing to provide a statement, the mother replied that she did not want to attend Court but only wanted an AVO to protect her. After it was explained to her that a statement would be required for an AVO, but that the claims would be investigated regardless of whether or not she provided the statement, the police records note that the mother became agitated and then informed the police that the father did not strangle her and that he only pushed her slightly. She then alleged threatening text messages from the father, but when they were reviewed by the police the police formed the view that the father had not made any threats. The police thereafter spoke to the father who indicated that the mother’s version was false and that CCTV footage would be able to show that she had made a false claim. The matter was not taken any further by the police.
The mother asserts that following X’s birth she was the child’s primary carer until orders were made by consent in 2018, that she took care of the child on her own and that she cared for him on a full-time basis[6]. However, the mother then asserts that the father “has repeatedly made the unilateral decision to withhold X from my care, often without any explanation or reason”.[7]
[6] Paragraph 14 of the mother’s Affidavit filed 7 August 2020
[7] Paragraph 21 of the mother’s Affidavit filed 7 August 2020 and an example of a further inconsistency in the mother’s evidence is as follows: “I am always present with X even when we visit the Maternal Grandmother. I have never left X for longer than 2 or 3 hours at a time with the Maternal Grandmother when I need to attend classes”. (paragraph 48 Affidavit filed 7 August 2020) The mother cannot be “always present” if she is leaving the child for no longer than 2 or 3 hours with the Maternal Grandmother.
In support of this assertion that the child was “withheld from her” the mother gives the following examples:
a)That the child was withheld by the father from early March 2017 to April 2017[8];
b)In or around July 2017 the father “recommenced” time with X and in mid-July 2017 he failed to return X to the mother’s care despite the parties’ agreement. The mother then states that “Following this I spent time with X sporadically on approximately 3 or 4 occasions when the Father agreed”[9].
c)It appears from the mother’s evidence that the child stopped living with her in or around July 2017, although it is not clear, and that in or around September 2017 she contacted the father to tell him she was coming to collect the child, but that the father said she could spend time with him but not have him back[10].
d)An incident then occurred, on the mother’s version, where the father perpetrated significant physical violence upon her by choking her whilst she was holding X and breaking her finger by twisting her hand. The father then reported the incident to the police but it was the mother who was arrested and charged with assault.
e)The mother then says that between September 2017 and November 2018 the father only agreed to allow her to spend time with X on approximately 8-10 occasions.
[8] Paragraph 22 Affidavit filed 7 August 2020;
[9] Paragraphs 22-25 of the mother’s Affidavit filed 7 August 2020
[10] Paragraph 26 of the mother’s Affidavit filed 7 August 2020
It would therefore appear from the mother’s evidence that she was not the child’s primary care giver until November 2018 as she broadly asserts, but rather that the child has primarily lived with the father since July 2017 to the date of those orders, and that prior to July 2017 there was an arrangement in place where the child spent time and lived with both parents but not pursuant to any set arrangement.
It appears on the evidence of both parties that the child primarily lived with the mother from his birth till about mid July 2017, that he then lived primarily with his father between July 2017 and November 2018, then pursuant to interim orders which was a 8/6 arrangement in favour of the father, and then with the father since February 2020.
The reasons as to why time has occurred in the way that it appears to have occurred are in significant dispute. It may well be that the Court determines after a final hearing that there has been unreasonable actions by the father in not facilitating a relationship between the child and the mother for significant periods of time in the child’s life, it appears that for the majority of the last three years in the child’s life he has lived primarily with the father.
The father’s evidence is that in 2019 he took the child to his General Practitioner, Dr H and obtained a referral to see Ms G. The first appointment with Ms G was on 18 September 2019. The father asserts that he had asked the mother if she wanted to attend the appointment, but that she was not willing to attend. The child’s second appointment was on 19 February 2020. It is not clear when this appointment was made but the father asserts that the reason he took X to see Dr G on 19 February 2020 is because he was exhibiting symptoms of anxiety and stress.
The father says after the first appointment in September 2019, the child’s behaviour was worsening and that there were occasions when he would return from the mother’s care hungry, aggressive, anxious and unsettled. Further, X was “written up” at school for hitting teachers, a behaviour which the father says was very uncharacteristic for X. At this time, the Court notes, the child was attending two different primary schools.
On 19 February 2020, the father says that Ms G met with him and X, that there was first a joint session and then Ms G saw X for a private therapy session. Ms G then advised the father that X had made a number of concerning disclosure during the session. The father was informed by Ms G “to his shock” that X had disclosed physical abuse by members of his maternal family, including being whipped by a phone charger, that he is not properly fed and that he is sometimes locked in his room.
Despite these disclosures by the child to Ms G, and the apparent concern they generated, the father on 20 January 2020, after X’s pre-school graduation, told the child to go with his mother at the conclusion of the event. The child after getting in the car with the mother, was allegedly “pushed” out by the mother and he went home with the father. The child apparently said to the father on the way home “I’m scared Mum will smack me if I say anything.”
The father then goes on to say in his evidence[11]:
I tried to discuss these issues with Ms Tealer throughout most of last year but she dismissed it as childish or boyish behaviour. In relation to the hunger, she said that X would tell her that he was not hungry. I then suggested taking X to see a psychologist after his behaviour was becoming increasingly problematic, and Ms Tealer said that it would be “okay” for me to take him.
[11] Which on its face may appear contradictory to the father suggesting that the disclosures to Ms G were new
The father’s submission as to why the child has not spent time with the mother since February 2020 to date was that the child was at an unacceptable risk of harm, and that despite the interim ADVO and restraint made by this Court in November 2018 restraining the parties from physically chastising the child, the father alleges the mother continued to do so. Indeed it was submitted in the father’s case that the mother was assaulting and abusing the child and that she was also engaging in neglect. The father asserted at the interim hearing that he was not aware that the mother was excessively disciplining the child, much less with objects such as cables and cords, and that he had previously held concerns about the mother’s capacity and availability to properly supervise the child.
However, it is clear from the father’s own evidence that there appears to have been an issue with X not eating at his mother’s home. It also appears from the father’s evidence that the father had raised with the mother throughout 2019 either the child’s reluctance to spend time with the mother and/or the child’s reluctance to spend time with the mother due to alleged smacking of the child.
In the Family Report, the father is noted as stating that his main concern about the mother’s care of X is her and her family’s use of physical punishment. The father apparently said that this was very common in Country J households and that he believes that the mother is capable of punishing X physically. “Mr Ceders said that X constantly complains that his cousin… and the maternal grandmother hit him with a cord.”
The interviews for the Family Report occurred less than 3 months after the disclosure to Ms G. The father told the Family Consultant that X had told Ms G that he was being hit with a phone charger by both the mother and the maternal grandmother. The father said that the child had also spoken about being hit often at the mother’s home and expressed fear about going there.
The Court notes that some of the father’s own evidence does not sit well together. For example, certain paragraphs in the father’s affidavit together with the matters in the Family Report, when read together appear on their face to suggest that the father was aware of the allegations that X was being physically disciplined in the mother’s household, and that he was not receiving adequate food. Such a reading of those matters is in direct contradiction to the assertions in the father’s affidavit that he simply was not aware of any of these allegations prior to Ms G telling him on 19 February 2020. If the father was as shocked as he suggests, it is unlikely that he would have facilitated the time between the child and the mother in the manner he asserts occurred on 20 February 2020. Furthermore, there are significant contradictions between what he reportedly said to the Family Consultant about the events on 20 February 2020 and what is his sworn evidence. These matters might be explained during cross-examination and/or submissions after a full hearing.
The mother denies that she physically disciplines the child, that the child is subjected to abuse or neglect in her home or when in the presence of the maternal family. The mother asserts that the father has “demonstrated a history of making false allegations against me and contravening the Orders to withhold X from me.” The mother is of the view that the father is withholding X from her care as he wishes to send X to his school of choice and is attempting to intimidate the mother. The mother expresses concern that the father has coached X to state to the psychologist allegations which would allow him to withhold the child from her, and she is of the view that the father has made these claims to advance his case in the family law proceedings.
It appears on the evidence that there have been times when the child’s time with the mother has stopped due to the father refusing or choosing not to comply with an agreement that had been in place between the parties or with the orders as in place since November 2018. Certainly, while there had been substantial compliance between November 2018 and February 2020, there were interruptions to the child’s time with the mother.
The mother’s confusing and contradictory evidence, together with Exhibit 2, causes the Court to have some concerns about the veracity of the mother’s evidence in terms of carrying out the risk assessment tasked upon the Court; in particular when weighing up the probabilities of the competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.
Apart from the disclosure to Ms G, there are no other reports from any other third party noting similar allegations.
However, like the difficulties identified in the mother’s evidence, the difficulties in respect of the father’s evidence will be considered in particular when weighing up the probabilities of the competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected.
Having carefully considered all of the evidence, and weighing up the risks to the child, the Court does not find that there is an unacceptable risk of harm to the child in the manner alleged by the father if he was to spend time with the mother on an unsupervised basis or if he was to live with the mother.
However and notwithstanding the apparent contradiction in respect of the allegations the father makes, the risk to the child of abuse in the manner alleged have been identified and need to be minimised. This is to be done by way of a continuing injunction and the time which X will spend in the respective households. The Court expects its orders to be followed.
Having decided that there is no unacceptable risk to X in the mother’s care, the next question is where should X live in the interim?
While there have been different arrangements in place over X’s short life, he has since February 2020 had one primary residence and one primary school to attend. In light of the parental conflict this must have been a welcome reprieve for the child.
The father’s unilateral actions in ceasing time between the child and the mother in the circumstances of the apparent disclosures and in light of the interim orders, the restraints in place, the provisional (and interim) ADVO do not appear to be child focused, and could well be opportunistic. The incredible conflict and stubbornness of the parents in insisting that the child attend two different primary schools is extraordinary. This was no doubt a very confusing and unsettling time for the child.
The Family Report notes that given the apparent status quo and the importance of avoiding further changes for X, it may be, on balance, preferable for X to spend the majority of time with the father. This was said in the context of a number of other recommendations regarding a final outcome of the parenting proceedings. The Court is well aware that the opinion of the Family Consultant is yet to be tested, as is all of the other evidence in the proceedings.
The evidence suggests that X is well loved by both of his parents and at least on the face of their documents, the parents both agree that the child would benefit from having a meaningful relationship with the other parent. Except as told through Ms G, there is no independent evidence of the child’s expressed views. In addition, he is only five years and seven months old, so any views he had expressed would be given limited, if any, weight.
There have been significant disruptions to the child’s relationship with the mother, and it appears from Ms G’s evidence that the child has a warm and loving relationship with the father and that he is comfortable with the father.
While the Court remains concerned about the veracity of the allegations and therefore the disclosures to Ms G, it appears that the child has expressed a certain reluctance to spending time with the mother. Certainly, even without that reluctance, it is likely that his relationship with the mother might have suffered as a result of:
a)the parental conflict;
b)the apparent lack of routine and regular time between the mother and the child between July 2017 and November 2018;
c)the child’s living arrangements prior to the November 2018 consent orders; and
d)the lack of any face to face time since February 2020, a period of some six months.
Certainly, since February 2020 the mother has availed herself of spending some time with the child as offered by the father through video conferencing facilities, but there has been no other time – notwithstanding the father’s offer of supervised time. While it might be understandable why the mother would reject such an offer in light of the interim orders, it would have allowed the child to at least see her face to face in the interim period. The mother’s reluctance to accept the father’s offer of supervised time might ultimately be viewed as the mother placing her own needs above those of the child. The father’s refusal to facilitate time in accordance with the interim orders might ultimately be seen as the father not acting in the child’s best interest, but rather in his own.
Given the significant disruptions to X’s living arrangements to date and the potentially fractured relationship with the mother, it is in X’s best interest that that relationship be re-established as soon as possible.
Noting the lack of participation by the mother in the psychological interventions for the child, and her evidence that she was never consulted about such therapy nor did she ever agree to such therapy, and the apparent questioning of the child by Ms G, the Court has significant concerns about any ongoing therapy with Ms G. This is compounded by some of the comments in Ms G’s report that “although it is not my role to get involved with, or comment of the relationship and dynamics…” It would be in X’s best interest for all such therapy to immediately cease.[12]
[12] The matter was not raised with the parties during the hearing and as such, it might be viewed as procedurally unfair if an order was made to this effect. It is however, a matter which the Court expects the father to take into consideration and act appropriately.
It is highly possible that the worries which X expressed to Ms G were expressed in the context of his stress at having to attend two different schools and how unsettling this was for him. He appears to now be well settled in his school.
This is a finely balanced case.
There is a strong argument for X to remain living with the father and spend five or six nights per fortnight with the mother, however this might pose difficulties for X in attending school as there are some real practical difficulties for the mother to facilitate this on a regular basis as she does not have a motor vehicle. One of the alternatives then is to have X attend the school closer to where the mother lives and/or live with the mother while spending significant and substantial time with the father. Another alternative is that time between the child and the mother be only on alternate weekends or a shorter period then five or six nights if there is practical difficulty for the child to get to school from the mother’s home. However, the practical difficulty was not a matter upon which submissions were made in the mother’s case as being a factor which was of particularly significant weight.
The father’s evidence is that he has a flexible work arrangement and that he is able to pick X up from school every day except for Thursday. The mother’s evidence is that she has a flexible work arrangement albeit there may be some practical difficulties in the child attending the school at Suburb E as already identified. It is apparent from what has occurred that an 8/6 arrangement for X is too disruptive. While the “blame” for this may ultimately fall upon one or both of the parents, the Court’s primary concern is what is best for this child at this point in time.
The Full Court has recently reiterated that the case law is replete with discussion of the importance of stability and the need for careful attention being given in interim hearings to the effect of changing well settled arrangements: Cottey & Backey (No.2) [2020] FamCAFC 206 at [66].
If history is any indicator of the future, there is the real and possible risk of further disruptions to the child’s time with the mother as there has been in the past. However, there is little evidence about the impact long term and short term on the child if such disruptions were to continue. The Family Report writer opines that:
… it is likely that X has experienced a history of disrupted attachments. This may have implications for his ability to self-regulate and to form and support relationship in the future and for his physical and mental health.[13]
[13] Paragraph 71
While there is significant stability which X experiences at present, the evidence suggests that it may have been orchestrated by the father (in pursuit of orders which the father ultimately seeks as submitted by the mother). Difficulties in the father’s evidence have already been identified earlier in these reasons. X does nonetheless enjoy stability at present, although this has not always been the case.
The risks identified to X of a fractured relationship with the mother (whether arising from lack of time, abuse or other factors) can be minimised by an order for significant and substantial time. However, such orders were in place at the time of the unilateral decision by the father to stop time earlier this year, resulting in the child not spending any face to face time with the mother for a period of over 6 months. The conflicts in the evidence suggest that the father’s decision to cease time may not have been bona fide, although such a finding is not capable of being made at present.
Given the history of disruption of time, there is the possibility that if X remains living with the father that his time with the mother will be further disrupted as it has been in the past. This is a significant risk, one that will be ameliorated by the matter being determined on a final basis in the foreseeable future, and an expectation that orders will be complied with.
There is no evidence to suggest that if the child was to live with the mother on an interim basis there would not be stability to his living arrangement. He would return to a school which he was attending at the beginning of the year and he would return to living in a home which is familiar to him. There would be stability albeit following further significant disruptions to his present living and schooling arrangements. He would again need to accustom to living with the mother and to attending a different school, with the prospect of those arrangements again being reversed following the final hearing.
Accepting that there may be an impact upon him if there are disrupted attachments, the importance of avoiding further changes for X on an interim basis, outweigh the possible risks to him of disrupted attachments.
On balance, it is in X’s best interest that pending a final hearing, he live with the father and spend time with the mother which is regular and meaningful.
It is important for both parents to enrol in parenting courses such as ‘1, 2, 3 Magic’ or ‘Positive Parenting’ as recommended in the Family Report[14] so that they gain a better understanding of the impact of conflict on X and the possible effects of excessive physical discipline.
[14] Paragraph 65 of the Family Report released 2 June 2020
Given the intractable parental conflict, it is appropriate for an Independent Children’s Lawyer to be appointed. This was not an order discussed at the interim hearing, however the parties may apply to the Court to have that order discharged, if appropriate.
For all of these reasons, orders as set out at the forefront shall be made.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 27 August 2020
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