Whitehall & Hauser
[2024] FedCFamC1F 849
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Whitehall & Hauser [2024] FedCFamC1F 849
File number: SYC 483 of 2022 Judgment of: SCHONELL J Date of judgment: 9 December 2024 Catchwords: FAMILY LAW – PARENTING – Final orders – Where parties entered into consent orders on the final day of hearing save for two discrete issues of overnight time and cost of travel – Where the father contends that overnight time with the children occur as soon as possible – Where the mother and ICL contend that overnight time should be progressed in a staggered approach – Where the father contends that the cost of travel of the children should be borne equally by the parties – Where the mother contends that the father should bear the costs of travel of the children – Orders made for a progression to overnight time – Orders made for the father to bear the costs of travel of the children. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC(2), 60CC(2A), 60CG Number of paragraphs: 42 Date of hearing: 1 December 2024 – 5 December 2024 Place: Sydney Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Rams Family Lawyers Counsel for the Respondent: Mr Breeze Solicitor for the Respondent: FKG Law Solicitor Advocate for the Independent Children's Lawyer: Ms Edward ORDERS
SYC 483 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WHITEHALL
Applicant
AND: MS HAUSER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The children shall spend time with the Father as follows:
(a)From the date of these Orders until the commencement of Term 3, 2025: each third Saturday and Sunday from 9am to 5pm on each day, with such time to occur in Sydney;
(b)From the commencement of Term 3, 2025: every third weekend from 9am on Saturday until 5pm on Sunday with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
(c)From the commencement of Term 1, 2026: every third weekend from after school on Friday until 5pm on Sunday with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
(d)From the commencement of Term 2, 2026: every third weekend from after school on Friday to before school on Monday, with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
(e)From the commencement of Term 1, 2027, for half of each mid-year school holiday period.
2.The Father meet the cost of the children's travel to and from Melbourne.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitehall & Hauser has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings under Part VII of the Family Law Act 1975 (Cth) ("the Act") in relation to the parties' youngest two children; twins born 2012 ("the children").
The parties separated in January 2016 and since that time the children have lived in the mother's primary care and spent varyingly different periods of time with their father. Overnight time ceased in October 2019 and since October 2022 the father has spent supervised day only time with the children each alternate weekend.
At the commencement of the hearing, the father sought orders for sole parental responsibility, that the children live with him, and that the children spend time with their mother each alternate weekend and for half school holidays.
The mother sought orders for sole parental responsibility, that the children live with her and spend time with the father, in the event the Court determined that there was an unacceptable risk of harm, on a supervised basis each alternate Saturday and Sunday from 9.00 am to 5.00 pm and, in the event the Court determined that the children were not at an unacceptable risk of harm, then each alternate Saturday and Sunday from 9.00 am to 5.00 pm on an unsupervised basis.
The proceedings were conducted on the basis that there should be an order for sole parental responsibility to the party who had primary care of the children. During the course of the father's cross-examination, he indicated that in the event that the Court made orders for the children to live with the mother, he sought time each alternate weekend from after school Friday to before school Monday and for half of each school holidays. If an order were made for supervised time, he indicated he would 'walk away' and not spend time with the children.
Each of the parties contended that the other posed an unacceptable risk of harm to the children.
The parties identified in Exhibit 8 the issues for determination by the Court to be as follows:
(1)Whether the mother poses an unacceptable risk to the children and, if so, how to protect the children from mental abuse, emotional and psychological harm and the children's health and well-being, so as to mitigate that risk. (F)
(2)Whether the children should live with the father if the Court finds the mother poses an unacceptable risk to the children. (F)
(3)Should the children spend any time with the mother within a fixed period of time in the event of the father becoming their primary carer. (F)
(4)Whether the applicant ("the father") poses an unacceptable risk of harm to X and/or Y (M)
(5)If the father does pose an unacceptable risk of harm to the children, whether X and Y should spend time with the father supervised by a professional supervision agency (such as B Contact Service) or some other person (eg the father's partner, Ms C). (M)
(6)If the father does pose an unacceptable risk of harm to X and/or Y, and the Court orders that such time is to be supervised by a professional supervision agency, who should bear the costs of said supervision. (M)
(7)If the father does pose an unacceptable risk of harm to X and/or Y, whether the children should spend overnight time with the father. (M)
(8)If the father does currently pose an unacceptable risk of harm to X and/or Y, whether supervision should be unnecessary at some time in the future. (M).
(9)If the father does not pose an unacceptable risk of harm to either X and/or Y, whether X and Y should spend time with the father:
(a)Each alternate weekend or each third weekend;
(b)Whether the children should spend overnight time with the father;
(c)Whether it is appropriate for the twins to spend time with the father in temporary accommodation;
(d)During school holidays. (M)
(10)Whether there should be an Order for changeovers, and if so, whether the Order should be that changeovers will occur at a location as agreed between the parties close to the mother's residence. (M)
(11)Whether the financial position of the father impacts (and to what extent) his capacity to:
(a)Travel from Melbourne to Sydney to spend time with the twins, and
(b)Pay for accommodation for himself and the twins (M)
(12)Whether the children should communicate with the father by telephone of "Facetime" in accordance with their wishes, or whether the children shall communicate with the other parent while not in the care of a parent via telephone or "Facetime" as agreed, and failing agreement each Tuesday and Thursdays between 6.00 pm and 6.30 pm (M)
(13)Whether there should be an Order that each of the parties facilitate the twins' attendance at extra-curricular activities in which they are enrolled on the days that the twins are in their respective care. (M)
(14)Whether the father shall be permitted to travel overseas with the twins, considering the mother's contention that he poses an unacceptable risk of harm to the twins. (M)
(15)Whether the father has perpetrated family violence towards the mother and/or the twins and if so,
(a)The nature of that family violence; and
(b)The severity of that family violence; and
(c)Where coercive control was part of the family violence; and
(d)The inferences to be drawn from such findings in relation to the father's parental capacity and the orders to be made. (M)
(16)If the father has obtained US passports for the twins, whether:
(a)The father shall surrender the passports to the mother, and
(b)Whether the mother shall hold those passports. (M)
(c)Whether the mother should be permitted to travel overseas with the twins, and if so, what orders should be made providing notice to the father. (M)
(17)If the Court finds that there is not an unacceptable risk of harm posed by the father:
(a)Should the father spend overnight time with the twins on alternate weekends or one weekend per month in Sydney.
(b)Should the father spend school holiday time with the twins in Melbourne for a period of 6 days in the mid year school holidays and 18 days in the Christmas school holiday period. (ICL)
The father relied upon the following documents:
(1)Affidavit of father filed 1 September 2024;
(2)Affidavit of father filed 21 November 2024;
(3)Affidavit of Ms C filed 1 September 2024;
(4)Affidavit of Ms D filed 3 September 202; and
(5)Outline of Case document filed 27 November 2024.
The mother relied upon the following documents:
(1)Amended Response filed 4 December 2023;
(2)Affidavit of mother filed 30 August 2024;
(3)Affidavit of Ms E filed 30 August 2024;
(4)Affidavit of Mr F filed 30 August 2024;
(5)Affidavit of Mr G filed 30 August 2024;
(6)Affidavit of Ms H filed 30 August 2024;
(7)Affidavit of Mr J filed 30 August 2024;
(8)Affidavit of Ms K filed 30 August 2024;
(9)Affidavit of Ms L filed 19 September 2024;
(10)Affidavit of Mr M filed 14 November 2024;
(11)Affidavit of Mr N filed 14 November 2024; and
(12)Outline of Case document filed 26 November 2024.
The father and his witnesses were cross-examined by the mother's counsel and solicitor advocate for the Independent Children's Lawyer ("ICL").
The mother was cross-examined by the father's counsel and solicitor advocate for the ICL. The father's counsel advised that he did not require for cross-examination any of the other witnesses in the mother's case. The ICL sought only to cross-examine one of the mother's witnesses, being the maternal grandmother, Ms E.
The Court Child Expert gave evidence on the last day and was cross examined by each of the parties. Following cross-examination of the Court Child Expert, the parties asked for time to see if they could reach agreement.
Remarkably, and to the parties' credit, they ultimately reached agreement that the mother have sole parental responsibility, that the children live with the mother, and that the children spend unsupervised time with the father. The parties also agreed as to various other orders as to communication, restraints and therapy. As a consequence of the agreement, orders were made by consent in relation to those matters.
The parties remained at issue as to when the father's time with the children should commence on an overnight basis and who should meet the costs of the children travel to Melbourne on the occasions on which time was to be spent in Melbourne.
The mother and ICL proposed an order for time as follows:
6. That [X] and [Y] shall spend time with the Father as follows:
6.1That from the date of these Orders until the commencement of Term 3, 2025: each third Saturday and Sunday from 9am to 5pm on each day, with such time to occur in Sydney;
6.2From the commencement of Term 3, 2025: every third weekend from 9am on Saturday until 5pm on Sunday with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
6.3From the commencement of Term 1, 2026: every third weekend from after school on Friday until 5pm on Sunday with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
6.4From the commencement of Term 3, 2026: every third weekend from after school on Friday before school on Monday, with such time to occur in Sydney, or if agreed by the parents for no more than once per calendar month, in Melbourne;
6.5From the commencement of Term 1, 2027, for half of each mid year school holiday period.
The mother sought that the father meets the costs of travel.
The father sought that overnight time commence as soon as possible and that the parties share equally the costs of travel.
APPLICABLE LAW
Parenting proceedings are governed by Pt VII of the Act.
In making a parenting order, s 60CA requires that I am to regard the best interests of the child as the paramount consideration. In determining what is in the child's best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other.
The matters to be considered are:
60CC How a court determines what is in a child's best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child's family.
Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary, relative to the evidence and the risk of harm.
DISCUSSION
The parties have been in conflict from at least the birth of the twins and at a heightened state of conflict since their separation in 2016. Each during the course of the hearing made very serious allegations as to the parenting capacity of the other. To their credit they were able to, with the benefit of their lawyers, reach agreement about parental responsibility, whom the children should primarily live with and that the children should spend unsupervised time with their father. As referred to above, they were unable to reach agreement as to when overnight time with the father should commence.
The consequence of their agreement implicitly means that despite the allegations raised by each of them, they were each satisfied that the other no longer (assuming they ever did) presents an unacceptable risk of harm to the children. Notwithstanding their agreement implicitly recognising the above, I am satisfied on the evidence that I have heard that I could not find that the father acted in a sexually inappropriate way toward the children nor find that the father posed an unacceptable risk of harm to the children. I am also satisfied that the mother at all times attempted to resolve the tension between ensuring that her children were safe, while ensuring they maintained a relationship with their father and could not find that she posed an unacceptable risk of harm to the children.
In circumstances where parties separate and there is a complete breakdown in trust, then sometimes the unfortunate consequence is that parents assume the worst, losing sight of what is objectively in the best interests of their children.
To their credit, they have now embarked upon a new approach to parenting. It will not be without its pitfalls, and I have no doubt that problems may arise, but they must now ensure that they attempt to resolve those difficulties without animosity and conflict because that ultimately provides the best opportunity for their children to grow, develop and mature into normal, well‑adjusted adults.
I am hopeful that the parents understand that if they are critical of the other or denigrate the other in the presence of the children, that the children feel that in a very personal way. Children recognise that they are made up of each of their parents. A criticism of their parent can be implicitly perceived as a criticism of them.
The Court Child Expert reports as follows:
70.…[Y] expressed sadness that she does not see her father often. She shared her frustration with the supervised time. [Y] feels that supervised time limits what they can do in the time they spend with their father. She stated that she would feel safe without the supervision, due to the supervisors having a strict adherence to rules which she implied, interrupted her time with her father. …[Y] says that she feels safe with both her parents with the exception of nighttime with her father. When asked further, [Y] stated that Melbourne was a long way from her home and she has not spent time away from her mother for quite a while, indicating a lack of familiarity, missing her mother and the distance.
…
73. [Y]…said that she did not want to go to Melbourne (to live) but that she would like to see her father, but not sleep at his home. She says that she "might decide to sleep over, when I'm older" when asked further, she said "when I go into high school." She appeared hesitant when realising that high school was fast approaching.
…
78.[X] understands that his father would like he and [Y] to visit him in Melbourne which [X] said he would like to do but stated that he would not like to sleep there until "I am older" but said he would like to see the house where his father lives. He says that they are not able to sleep over at their father's home "because of [Y]" adding, "I don't want her to be uncomfortable, and she hates aeroplanes". [X] thinks that [Y] would also like to see where their father lives but "not stay there".
79.[X] expressed his frustration with the supervised visits stating "they aren't much fun" for similar reasons to [Y]. He expressed a view that the supervised time is restrictive and unnecessary. [X] says that he feels "safe with Dad" and feels that [Y] would also "most likely feel safe with Dad too".
The clear and cogent oral evidence of the Court Child Expert was that the children had some reservations about moving immediately to overnight time. Her evidence was that the progression to overnight time, including visiting Melbourne, should happen in a measured way. She said that Melbourne was not a familiar place to the children and that the children would need to build up time before that commenced. In that respect, she made it clear that if the children's views about not spending overnight time were not recognised then they would feel that they had not been heard, and their views were not valued.
The Court Child Expert also identified that as the children are moving into high school next year, this is a time of significant change, and the thrust of her evidence was that if the Court were to introduce another change such as unsupervised or overnight time too quickly, then it could be overwhelming for them.
I recognise the father's genuine desire to move as quickly as possible to an overnight time arrangement. I recognise also that the father feels in a very genuine way that he has bided his time and undertaken a lot of supervised time and that it is now time that it should progress as soon as possible to an overnight time arrangement. That said, it is the Court's obligation to make orders that promote the best interests of the children.
I am satisfied, consistent with the evidence of the Court Child Expert, including the views expressed by the children recognising that they are intimately affected by the decisions the Court makes, that the Court should hasten slowly. In that respect, the orders as proposed by the ICL and the mother represent a steady transition to overnight time, subject to one minor amendment. In that respect, I consider that proposed Order 6.4 should be amended to commence from Term 2 2026 rather than Term 3 2026. It is consistent with a slow but steady progression but is not interminable.
In relation to the cost of travel, I note that each of the parties are in straitened financial circumstances albeit I accept that the father has a financial resource available to him represented by his partner as does the mother represented by her parents. That said, it was the father who chose to move to Melbourne, and it is thus the father who has brought about the situation that leads to the necessary incursion of increased travel costs. In those circumstances, I am satisfied that the father should meet the costs of any travel, recognising as I do, that the orders would permit the father to arrange airline travel a long way ahead, hopefully thereby minimising the cost.
Not all of the considerations in s 60CC(2) are relevant to the narrow issue which I have to determine and accordingly I have had regard to such of them as are apposite to this determination.
S 60CC (2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child (whether or not a person has parental responsibility for the child)
For the reasons referred to above this is not a relevant consideration.
S 60CC(2)(b) Any views expressed by the child
I have referred to the views of the children.
S 60CC(2)(c) the developmental, psychological, emotional and cultural needs of the child
This has been referred to above.
S 60CC(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs
This is not a relevant consideration.
S 60CC(2)(f) anything else that is relevant to the particular circumstances of the child
I am desirous of making order that will avoid the possibility of further conflict. I am satisfied that the orders I propose to make to the extent possible achieve that outcome.
CONCLUSION
For the above reasons, I am satisfied that the orders as proposed by the mother and the ICL, subject to the one amendment referred to above, are ones that are in the best interests of the children in relation to the progression to overnight time. Also, for the reasons referred to above, I propose to make an order that the father meet the costs of the children's travel to Melbourne in the event that he elects to have them spend time with him in Melbourne.
I am satisfied that these orders are in the best interests of the children.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 9 December 2024
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