ALESSI & GROVES

[2018] FCCA 3730

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALESSI & GROVES [2018] FCCA 3730

Catchwords:
FAMILY LAW – Interim hearing – children aged 11 and 6 – comprehensive final orders made by consent in December 2016 – high conflict – orders have broken down in controversial circumstances – family report ordered – parties disagree about implementing report’s recommendations – mother opposes interstate travel with father at Christmas – mother asserts travel involves physical and psychological risk – assessment of risk – wishes of children – mother  seeks addendum to family report – proportionate response to degree of risk involved – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CC, 69ZN.

Cases cited:

Rice & Asplund (1979) FLC 90-725

Mazorski v Albright (2007) 37 FamLR 518
Bright v Bright (1995) FLC 92-570
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
B & B (1993) FLC 92-357

Applicant: MS ALESSI

Respondent: MR GROVES

File Number: ADC 4808 of 2015

Judgment of: Judge Brown

Hearing date: 7 December 2018

Date of Last Submission: 7 December 2018

Delivered at: Adelaide

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Tinning

Solicitors for the Applicant: Andersons Solicitors

Counsel for the Respondent: Ms Horvat

Solicitors for the Respondent: Websters Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS:

1. Orders 1 to 24 (inclusive) of the orders of 22 December 2016 be reinstated.

2. The father shall be at liberty to communicate with the children via telephone call each Monday and Thursday at 6:00pm NOTING that such calls are not to be on loud speaker and the mother to ensure that all gaming and social media platforms are turned off during these phone calls.

3. The final hearing is confirmed for 1 & 2 April 2019 at 10:00am.

4. The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 18 February 2019.

5. The respondent file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 4 March 2019.

6. On or before 4 March 2019 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

7. The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012. 

IT IS NOTED that publication of this judgment under the pseudonym Alessi & Groves is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4808 of 2015

MS ALESSI

Applicant

And

MR GROVES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case has been fixed for final hearing in April 2019.  In October of 2018, a family report was released, well in advance of the hearing.  The report made a number of recommendations.  One party seeks the immediate implementation of those recommendations prior to the hearing; the other resists such a course, arguing that any finalisation of the case should await trial.  The issue for the court is how it should respond to this dispute.

2. Necessarily, when parents have a conflicted relationship, it takes the court a significant period of time to resolve the various areas of dispute arising between them.  Principles of both case management and practicality dictate that a similar hearing process is adopted in each such case to resolve these disputes.

3. Inevitably, a series of interim hearings occurs, after which a final hearing date is allocated.  Owing to pressures on the court’s business, the final hearing is often months away, when fixed.  Very often this final hearing date is allotted following the making of provisional orders, which regulate care arrangements for any child or children concerned pending this hearing. 

4. The legal principles to be applied at interim and final hearing stage are the same.  However, the format of the two types of hearing is fundamentally different.  Interim hearings take place in a truncated form, without cross-examination.  Often the evidence, particularly of an expert nature, is limited.  As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned. 

5. At the final hearing stage, the evidence is much more extensive and more thoroughly canvassed.  The parents concerned are subject to scrutiny through cross-examination and perhaps asked questions, about their past conduct or future motivation, which they may find difficult or uncomfortable to answer.  Necessarily, it is a more emotionally bruising experience. 

6. The delay arising between interim and final hearing need not always be deleterious.  It may serve as a form of psychological air lock, allowing emotions to settle.  It may also provide a time for reflection, in which the central issues in dispute can come into clearer focus.  In addition, the parents concerned can consider what utility a contested hearing will provide or what potentially deleterious consequences may arise. 

7. For obvious reasons, a bitterly adversarial case, focussing on the perceived failings of the other parent concerned, will rarely serve to enhance and support the future parenting relations between the two litigants concerned, in the months and years, which must follow the resulting adjudication. 

8. The sole object of any parenting case is on the pursuit and safeguard of the best interests of the children affected, not on the perceived rights of the parents concerned.  Because of this focus, it is invariably the case that the court obtains some form of expert appraisal of the family involved, which includes an observation of the child or children concerned, which, depending on the age of those children, will include some form of interview with them by the relevant expert. 

9. In such reports, it is frequently the case that the expert commissioned will provide a series of recommendations for the consideration of not only the court, but also the parents involved in the case.  For reasons of practicality, it is preferable that such reports be released to the parties well in advance of the final hearing, so that any recommendations and the basis on which such recommendations have been made, can be closely considered and, if appropriate, alternative means of resolving the dispute, other than litigation, be applied.

10. It is frequently the case that recommendations made by a family report writer are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier interim hearing stage. 

11. In this context, one parent may seek to re-agitate parenting arrangements in advance of the scheduled final hearing, for which the family report was ordered in the first place, on the basis of recommendations made.  This scenario has the potential to create its own dilemmas, which include the following:

    ·It is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned;

    ·However, any such expert has a significant advantage, over the court, because he/she has had the opportunity to have a face to face interaction with the child or children concerned, which the court will never have;

    ·On the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny, which cross-examination provides;

    ·In addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether his/her recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.

12. For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a family report.  On the one hand, the court should avoid an excessive number of interim hearings.   On the other, such reports are highly influential in shaping the court’s view as to the outcome best suited to serve the interests of any child affected by the proceedings before it.  In addition, it is invariably the case that a child’s best interests will be served if a final hearing can be avoided. 

Background

1. Many of these features are present in the current matter.  Mr Groves the father and Ms Alessi the mother are the parents of [X] born …2007 and [Y] born …2012.  They agree that their relationship as parents is marked by a significant level of conflict and quite different values and perceptions as parents.

2. The mother was born in Adelaide, South Australia, where her family mainly live.  The father was born in Town A, Queensland, where his family live.  The father’s family have a rural property, outside Town A, located on a river, where they like to camp during holiday periods. 

3. The parties know each other well.  They met in 2003 and married in Town A, on …2005.  Ms Alessi has qualifications as a public servant; whilst Mr Groves’ employment history has been as a tradesman, who has worked on a fly in/fly out basis. 

4. The parties each acknowledge that their relationship was frequently unhappy.  The father asserts that the mother was subject to frequent periods of depression and anxiety.  Mr Groves acknowledges that he did not always behave appropriately during the parties’ relationship. 

5. Against this background, the parties decided to relocate from Town A to Adelaide, in 2015, in an attempt to keep their marriage together.  However, they separated in emotionally charged circumstances, in March of 2015, whilst Mr Groves still had work commitments in Queensland.  It is the father’s perception that he was misled in respect of Ms Alessi’s intentions when he agreed to relocate from Town A to Adelaide. 

6. The parties were able to agree the property issues between them quickly and entered into a consent order in December of 2015.  However, in May of 2016, the mother commenced urgent proceedings in respect of spousal maintenance.  At the time, it was her position that Mr Groves enjoyed a large salary, as a fly in/fly out tradesman; whilst she was in receipt of social security.  She further asserted that Mr Groves had spent limited time with the children due to his work commitments. 

7. Mr Groves responded to this application in mid-2016.  In his response, he sought orders in respect of the children.  Underpinning his case was his position that he was in the process of moving from Town A to Adelaide, so that he could spend more time with the children.  At this stage, it was his position that the mother was not supporting his relationship with the children and was extremely difficult to deal with in respect of ongoing arrangements for him to spend time with them. 

8. At this early stage, Mr Groves flagged his desire to be able to take the children during school holidays, to his parents’ rural property at Town A, which the parties and children had previously visited, prior to their separation.  What happened on these visits and the level of risk which they potentially pose for the children remains highly controversial. 

9. In her answering affidavit material, Ms Alessi confirmed that she had been diagnosed as suffering from anxiety.  She also raised concerns regarding the psychological wellbeing of [X], who was initially named [X], following birth, but who had more recently assumed the name of [X].  Ms Alessi deposed that she had obtained a mental health plan for [X], which was directed towards his support in the context of the following issues:

   “Anxiety since parents separated – becomes distraught to or visiting father.  Also issues relating to wanting to wear boy’s clothes, be called by a boy’s name and not use girl’s toilets.  Teased by a couple of girls at school every day.”[1]

   As is apparent, all concerned, including the child, agree that [X] should now be known as [X] because of issues to do with his gender identification.

   [1]  See annexure A to the mother’s affidavit filed 22 July 2016

10. In October of 2016, the parties were referred to Family Consultant Ms D, to take part in a child dispute conference, the result of which was to be reported to the court, pursuant to the provisions of section 11F of the Family Law Act.  To Family Consultant Ms D, the parties described their relationship, as parents, as having been extremely difficult, painful and conflictual for a long time. 

11. I have no doubt that each party has had a similar experience to the other, in this regard, both before and after their emotionally challenging separation.  In these circumstances, I am concerned at the potential, which a vigorously contested final hearing presents for causing further emotional heartache to each of them and delaying any healing and or resolution of the manifold issues arising between them.  Regardless of the ultimate outcome of the proceedings, it appears axiomatic that the parties will have to interact with one another, as parents, for a significant period of time.

12. Issues surrounding the father’s desire to take the children to Town A are emblematic of the nature of the conflict between them and the differences in how each of them perceives the parenting capacity and abilities of the other.  Family Consultant Ms D alluded to these issues in her memorandum to court dated 27 October 2016 as follows:

    “The mother expressed concern that the children at the paternal grandparents’ property in Queensland were largely unsupervised, allowed to go alone near water, allowed to become ‘feral’ and fed excessive amounts of sugar. The mother said that while [Y] was currently having swimming lessons he was not yet a competent swimmer and would therefore be at risk of drowning. The mother was of the view that the children would not be safe there, and therefore asked that the paternal grandparents visit the children in Adelaide.

    The father disputed this. He said that he had grown up on that property and that there were now some 15 nieces and nephews who went there and that there had never been an incident of concern. He said that while the children were involved in outdoor farm activities the appropriate safety equipment was always worn. He said that, for instance, they wore lifejackets if they were out on the water at any time.”

13. This issue has never been satisfactorily resolved.  At present, the parties’ competing applications, for final parenting orders, have been fixed for determination on 1 & 2 April 2019.  In the context of this order, it was ordered that the parties take part in a family report, which was ultimately allocated to another family consultant, Ms E, who completed her report on 26 October 2018. 

14. Essentially, Ms Alessi views Mr Groves as an insensitive and lax parent, who is out of touch with the physical and emotional needs of the children, particularly [X], whose treating child and adolescent psychiatrist, Dr F has reported in January of 2018 that [X] has completely socially transitioned as a male.[2] 

    [2]  See annexure A1 to the mother’s affidavit filed 9 March 2018.

15. Ms Alessi further alleges that Mr Groves drinks alcohol irresponsibly and drives recklessly, which will pose a risk for the children, particularly in the rural setting of the property at Town A.  She has concerns about the nature of the accommodation which Mr Groves has obtained for himself in Adelaide.  She further alleges that Mr Groves has mocked [X] about some sensitive issues arising during his transitional process. 

16. In all these circumstances, it is Ms Alessi’s position that it would represent an unacceptable risk for the children to visit their paternal relatives at the rural location outside of Town A.  She fears that the combination of alcohol and water will be potentially dangerous and Mr Groves himself will not provide the level of supervision required to ensure the children’s safety.  She is also concerned that [X] has indicated to her that he is uncomfortable with being in his father’s care for extended periods of time.

17. For his part, Mr Groves refutes any suggestion that he is not sufficiently sensitive to the process with which [X] is now fully engaged.  To the contrary, he asserts he indicated to Ms E his acceptance of the process and denies he has ever been disparaging of [X] in regards to it.  He further denies that his home is unsafe or that he has said anything unacceptable to [X]. 

18. More significantly, he denies that he would ever willingly expose the children to harm or has otherwise not properly supervised them, including at his family’s river block outside Town A, which the mother full knows, as she has visited the property, with him and the children, in the past. 

19. In these circumstances, it is his perspective that the mother has an ulterior motive, which has led her to both exaggerate and fabricate her concerns, which are calculated to alienate the children from him.  Essentially, he would categorise Ms Alessi as a hyper-vigilant and anxious parent, who wishes to restrict his relationship with the children, to satisfy her own emotional needs. 

20. There have been a number of significant turns in the extended litigation between the parties, which commenced in May of 2016.  The most significant of which is that on 12 December 2016, following Family Consultant Ms D’s report, the parties were able to agree on final orders for the care of [X] and [Y].  The agreement between the parties can be summarised as follows:

    ·The parties have equal shared parental responsibility for the children;

    ·The children live with the mother;

    ·The father spend time with the children, as agreed, but failing agreement as follows:

    oEach alternate weekend from 4:00pm Friday until 5:00pm Sunday;

    oIn the intervening week, on Monday, for three hours between 4:00pm and 7:00pm;

    oFor half of each school holiday;

    oFrom 2017/2018 onwards for half of the long Christmas school holidays, at times to be agreed between the parties, but failing agreement to be on an alternate weekly basis;

    oThe festive days of Christmas to be divided equally so that in even ending years the children spend Christmas Eve and Christmas lunch with their mother with the reverse happening in odd ending years;

    ·Neither party would denigrate or abuse the other or permit a third party to do so.

21. Significantly, in the context of the current dispute, the parties deferred making definitive orders in respect of issues to do with either interstate or overseas travel for the children.  In this context, the following order was made:

    “That should either parent wish to take the children on holiday either interstate or overseas then agreement must be reached in writing following the party wishing to travel providing forty two (42) days written notice to the other party. The notice shall include the following information:

    An itinerary;

    Flight and/or accommodation details; and

    Contact details for the duration of the holiday.”[3]

    [3]  See Order 24 of the orders made by consent on 22 December 2016

22. In addition, the parties purported to contract out of the rule in Rice & Asplund.  In this context, they agreed to attend mediation to resolve any future contentious issues arising between them but, in the event this mediation was unsuccessful, each party reserved the right to make a further application to vary the orders concerned. 

23. In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration.  As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances. 

24. However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited.  Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

1. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.[4]

   [4]  See Rice & Asplund (1979) FLC 90-725

2. Whatever consensus existed between the parties, when the orders of December 2016 were made, it soon broke down.  In January of 2018, Mr Groves commenced contravention proceedings against Ms Alessi, which alleged that he had been the subject of harassment and denigration emanating from Ms Alessi and her family.  More significantly, he asserted that the children had not spent time with him from December of 2017. 

3. In support of his application, Mr Groves deposed that there had been an altercation between him and Ms Alessi’s father, which had occurred on 5 November 2017, when he had come to collect the children.  This had resulted in police involvement.  As yet, the various counts in Mr Groves’ contravention application have not been resolved. 

4. After having been served with the contravention application, Ms Alessi recommenced proceedings in respect of the parenting arrangements for the children.  She alleged that Mr Groves did not support [X]’s emotional needs and regularly referred to him as a sissy.  She characterised [X] as a vulnerable child, who had been subject to bullying at his school.  In this context, the mother alleged that the father did not accept [X] to be transgender and treated him differently to [Y].

5. In addition, the mother asserted that [Y] suffered from eczema, which required special measures in respect of his daily hygiene.  She alleged that the father did not provide [Y] with the appropriate emollients and other ointments prescribed for him.  She also alleged that the children had told her that the father had failed to adequately supervise them. 

6. Significantly, the mother deposed that in early 2018, [X] had shown her a picture of [Y], with his pants and underwear pulled down, showing his bottom and genitalia.  It was Ms Alessi’s position that [X] had told her that Mr Groves had placed [Y] on his work photocopier, in this state of undress, in order to take a photocopy of the child’s bottom.  She had reported this matter to the police. 

7. In all these circumstances, the mother sought to reduce the father’s time with the children and for her to be conferred with sole parental responsibility for the children.  In his response, Mr Groves sought to return to the earlier orders agreed between the parties in December of 2016.  He vehemently refuted the majority of the mother’s allegations against him.  He has later characterised the photocopying incident as an ill-conceived but not otherwise sinister event.

8. When the matter returned to court, in the early part of 2018, emotions were inflamed, between the parties, to say the least.  From Mr Groves’ perspective, he was frustrated that his time with the children was being interrupted on what he perceived to be spurious grounds.  From Ms Alessi’s perspective, she was only acting protectively so far as the children were concerned. 

9. Against this difficult background, the parties were referred to a further child dispute conference, on 25 June 2018, which this time was convened by Family Consultant Ms E.  In her memorandum to court she described each parent as being child focussed.  However, Family Consultant Ms E a gloss, so far as each party was concerned, to this descriptor. 

10. Ms Alessi was described as being calm and rationale to the extent of being slightly over confident in her current position; whilst Mr Groves was described as being frustrated, reflective and emotional.  Family Consultant Ms E was concerned at the extent of the conflict between the parents concerned, which had apparently extended to maternal and paternal grandparents. 

11. Family Consultant Ms E was not able to assist the parties to reach any agreement.  She did not make any specific recommendations in respect of the father’s time spending arrangements with [X]/[X].  Rather, under the heading future directions she indicated that a family assessment might assist to inform the court further.  Given the increasingly polarised positions of the parties and the volatility of the issues between them, I elected to take up Ms E’s recommendation and directed on 19 July 2018 that a family report be prepared. 

12. Although family reports have an important role, as a settlement tool, directed towards assisting parents to reach agreement about future arrangements for their children, their central purpose is to ensure that the court has as much evidence as possible to ensure that it makes the best possible determination to secure the best interests of any child concerned. 

13. For this reason, in order to preserve the utility of such reports, it is invariably the case that they are ordered in conjunction with the allocation of a final hearing date.  On 19 July 2018, it was directed that this family report be released to the parties on or before 26 October 2018; whilst the related final hearing was listed for 1 & 2 April 2019. 

14. Against this difficult background, at an earlier stage, orders had been put in place to enable the children to re-engage with their father.  From 24 April 2018, they spent time with him, during school weekends, from 10:00am Saturday until 5:00pm the following Sunday.  This was half the number of nights envisaged by order of 22 December 2016. 

15. In addition, Mr Groves’ time with the children during school holidays, was reduced to two discrete blocks of three nights in duration.  Injunctions were also made, on the insistence of the mother that the children not be photographed, unless fully clothed and [X] was not to have his mobile telephone removed from him. 

The family report of Ms E dated 26 October 2018

1. Ms E again described Mr Groves as a “child focussed parent who wanted to do the best for his children”.  Mr Groves further stated that he was supportive of [X]’s risk to transgender into male, but was cautious about this process and was proceeding on the basis of the professional advice provided to him. 

2. Ms E described Ms Alessi as presenting “as a parent who allows her fear about the children’s safety to prevent her from allowing the children to learn from well managed experiences.”  Ms Alessi was critical of many aspects of Mr Groves’ parenting, including the provision of financial support. 

3. Ms Alessi also recounted an incident, when [X] was aged about five, which must have been some time in 2012, when she had awoken at the Queensland block, in the middle of the night, and found her father absent, because he was checking craypots.  It seems clear that this issue continues to reverberate for the mother. 

4. Ms E also interviewed the children.  [X] indicated that he did not want to spend any more time with his father, but did not want to spend any less time with him either.  [X] described the time he spent with his father as being good but after a time his father got snappy and grumpy.  [Y] indicated a desire to spend more time with his father.  He seemed to be a somewhat reticent child, who was unable or unwilling to comment about some of the incidents raised by Ms Alessi. 

5. As is orthodox in the family report process, Ms E also observed the children with each of their parents.  When [X] left his mother, he said in passing “well this won’t last more than 15 minutes!”  This prediction was not borne out by what actually occurred.  [X] initially was resistant to engaging with his father, but Mr Groves’ calm and engaged manner was able draw [X] back from this initial disengagement.  In this context, Ms E reported as follows:

   “It was unclear why [X] acted in a manner that clearly thwarted the father’s interaction with the children, however these attempts were overridden by the father’s skill in engaging the children and not giving in or becoming angry when he faced resistance.”[5]

   [5]  See family report at [101]

6. In Ms E’s evaluation, Mr Groves was frustrated by Ms Alessi’s attitude towards him and his view that she was constantly criticising him.  He accepted that she was a protective mother by nature but, from his perspective, she had been unduly restrictive in respect of his engagement with the children.  On this basis, he wanted to return to the consent order of December 2016 and, in time, possibly work towards a shared care regime. 

7. Ms E reported as follows, in respect of the mother:

   “The mother, Ms Alessi, while presenting as child focussed, also presented as very bitter towards Mr Groves. While it is easy to see why she would feel this way, it appears detrimental to the children’s interests for her to continue to behave in a way that may be undermining the children’s relationship with the father.

   While it was not evident that the mother is covertly alienating the children, particularly [X], the mother has made decisions contrary to previous final orders, and has taken on a practice in which she demands information, or for tasks to be done by the father, and withholds the children if her demands are not met. The father has had to present evidence to the mother in order to see the children, and at times satisfactory evidence on one issue has led to a further demand by the mother.

   The mother’s demands at times may be seen as hypervigilance and/or coercive control, as there is little evidence that the information on which she has based her decisions to withhold the children, has come from a source other than the children.

   The mother stated that she is unwilling to “allow” the father to take the children interstate as she fears that he will not return them. When further explored it appeared that she is fearful that something that will happen to them if she is not personally there to protect them. It is possible that the mother’s fear about not being able to protect the children when they are not in her care, not only inhibits their growth and development, through new experiences, but sends the message to the children that their father is not able to care for, or protect them. The mother appears to have built a story, whether true or not, around the paternal family that suggests that none of the extended family have a reputation for being able to supervise children in their care, or act in a moral way. She appears to choose, however, to ignore that it is the father’s responsibility to protect them when they are in his care and he has done this, albeit reports to her from the children regarding activities, and she has used these in order to validate her fears.”[6]

   [6]  Ibid at [107] – [109]

8. Ms E regarded [X] as being a child who was clearly in a state of transition, at the present time, and as such, likely to be prone to great emotional turmoil.  In this context, she opined that it was likely to be helpful, for [X], that he have access to and the support of a primary male role model, who was supportive of him as, he engaged in the gender transition process. 

9. She regarded [X] as needing not only a supportive parent, but also one who was moderate and focussed on professional advice.  The import of her report was that she considered that Mr Groves was likely to fill this role.  As such, it was likely to be important that this relationship be fostered for [X]. 

10. In all these circumstances, Ms E recommended that [X] and [Y] continue to live with their mother but spend more time with the father in accordance with the previous consent order of December 2016.  Ms E was also in favour of each parent being able to take the children interstate and/or overseas provided appropriate safeguards were put in place and notice was given. 

11. Finally, Ms E recommended that Ms Alessi obtain psychological support to address her anxiety about not only issues relating to [X]’s gender change but also in respect of her concerns about the ongoing safety of the children, whilst they were in the care of their father. 

12. At first blush, Ms E’s report appeared to be comprehensive.  As the parties had previously been able to agree on the consent orders of December 2016 and Ms E had recommended that these orders be reinstated, I was hopeful that they might be able to agree on future arrangements for the care of the children concerned, without the need for a final hearing.  In this context, they were referred to an informal process of alternative dispute resolution.  Regrettably, no agreement could be reached and the matter has returned to court. 

13. In general terms, Mr Groves is open to a return to the December 2016 orders.  However, he wishes the issue of interstate travel, particularly to his family property in Town A, to be resolved definitively, as soon as possible.  At the very least, he would like to be able to take the children to Town A for a period of seven days.  From his perspective, such an arrangement would be in keeping with Ms E’s recommendations.

14. On the other hand, Ms Alessi vigorously resists any possibility of the children spending an extended period of time with their father and paternal family at Town A.  From her perspective, the children’s safety in Queensland is a matter for final hearing.  In addition, she is critical that Ms E’s report is incomplete.  In these circumstances, she would want Ms E to provide an addendum to her report, which addresses the following issues:

    ·     The children’s wishes in respect to holiday time; and

    ·[X]’s views about his treatment in his father’s home and his father’s attitude towards him regarding his gender dysphoria.

15. In respect of the forthcoming end of year school holiday, the parties are agreed on arrangements for the festive days of Christmas.  In respect of the other periods, she proposes that the children spend two consecutive nights in the care of their father in weeks one, three & five of the holidays and three consecutive nights in weeks two, four & six of the holidays.  Necessarily this would mean that there would be insufficient time for Mr Groves to travel to Queensland, with the children, as he wishes.

16. Neither party has filed any further affidavit evidence since Ms E’s report was released.  By necessary implication, it is the mother’s position that [X], in particular, will be resistant to spending time with his father for extended periods of time and there is a risk he will sustain some form of psychological injury because of his father’s insensitivity to his gender dysphoria.  In addition, she contends that the children’s safety will be compromised in Queensland. 

17. It is also the mother’s position that there are other significant issues remaining in dispute between the parties, which Ms E has not addressed.  These include the following:

    ·Ms Alessi was born on …1983.  From time to time, her birthday coincides with Easter.  In this context, she seeks clarification as to the time the children should spend with her, on her birthday, in the event the children are spending time with their father at Easter;

    ·The issue of interstate travel;

    ·The exact parameters of the time the children should spend with their father, during school holidays – seven day blocks, half/half, or shorter periods;

    ·What communication the children should have with her, when they are in their father’s care, during school holiday periods;

• How should records relating to [X]’s gender and name, including his birth certificate and education and medical records be made;

  ·The final disposition of the father’s contravention application, which has been held in abeyance whilst attention has been made to the other issues arising between the parties. 

How the court determines a child’s best interests

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 “the Act”.

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [see the Act at section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

5. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

8. The expression meaningful is not specifically defined in the Act.  It is an ordinary English word.  In Mazorski v Albright[7] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

   [7]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

9. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

10. Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives.  A child’s life is, by necessary definition, every activity in which the child takes part.  Literally, it means the child’s existence, as an individual.

11. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

12. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

13. The best interest considerations are to be viewed by reference to the objects and principles underlying Part VII of the Act. These have relevance to the situation of grandparents. Specifically, section 60B(2) recognises that:

    (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

14. The applicable legislation recognises that grandparents are potentially important to children.  Not only can they be a source of love but they are also able to provide family history to their grandchildren and give them a sense of where they fit in.  The same can be said of cousins and uncles and aunts and other relatives.[8]   

    [8] See Bright v Bright (1995) FLC 92-570

15. It is the essence of Mr Groves’ case that the children will benefit if they have a meaningful level of relationship with him.  Necessarily, the existing level of meaning in his relationship with [X] and [Y] will be enhanced, if he is able to take them away, for an extended period of time, to his family block. 

1. In addition, at the block, the children will be able to interact with their extended paternal family, in a relaxed setting, which will be beneficial to them and give them a sense of where they fit in within their Queensland family.

The assessment of risk

1. On the other hand, it is the mother’s case that, for the children to go to Queensland, will constitute a risk to both their psychological wellbeing and their physical safety.  As a consequence, the court is essentially called upon to balance the benefits the children are likely to derive from spending time with their father and wider paternal family with the various risks identified by Ms Alessi.  It has to do so at an interim stage of proceedings, albeit at a stage after the provision of a comprehensive family report.

2. In Deiter & Deiter,[9]  the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

   [9]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

3. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

4. It is impossible for anyone, including me, to predict the future.  Anyone who claim to be able to predict human nature, particularly in the volatile and labile area of family relationships is either naïve or misguided or quite possibly both.  However, it is possible for the court to make an educated guess, about such matters, after balancing the likelihood of particular outcomes in the context of the evidence available.

5. Life for any child cannot be made entirely risk free.  Even if it could, this might of itself have adverse consequences for the child concerned.  A completely anodyne life, without any challenges or new experiences, possibly formidable in nature, is likely to provide no life at all for that child. 

6. Accordingly, the risk from which the court is asked to protect the child must be appreciable in nature.  It cannot be trivial but rather must be of such moment that it would be irresponsible or generally unacceptable for the court to ignore the risk raised.  Accordingly, the court must undertake an assessment of the nature of the risk arising in the case concerned and put in place a response, which is commensurate to the risk so assessed. 

7. Risk is multi-faceted in nature.  There may also be risks arising of depriving the relevant child of some form of activity or engagement, including with a parent or relative, because of a heavy handed assessment of risk.  However, this exercise cannot be regarded as scientific in its nature. 

8. It must depend on an idiosyncratic analysis of all the relevant circumstances, within the overall context of what is the best outcome for the child concerned.  Within this matrix, the court should not countenance any risk for the court which is unacceptable.   

9. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [10]

   [10]  Slater & Light [2013] FamCAFC 4 at [37]

Discussion

1. I can understand the anxiety the mother feels at the prospect of [X] and [Y] going to the Town A property, which has a river frontage.  For understandable and human reasons, parents worry about the risk of drowning for their children, particularly if they are not available to provide eagle eyed supervision.  Worry intensifies with separation.  As human beings, we are hardwired to worry about our offspring.

2. As previously indicated, it is my function to assess risk objectively.  No situation involving water can be rendered completely safe.  However, in Australia, particularly during the summer months, recreation by the water, be it at the beach, beside a swimming pool or a lake or river, is a part of life for very many Australians, including children.  As a consequence, children are routinely taught how to swim in this country.

3. However, the scourge of accidental drowning remains a national concern.  In 2017, the Royal Life Saving National Drowning Report indicated that, in 2017, 291 people drowned in Australia.  Of these deaths, 23% occurred in a river, creek or stream.  In addition, many individuals are reported to have survived a water accident, but to have suffered severe health consequences as a result.

4. One quarter of people drowned were swimming or recreating prior to their death.  Alcohol was involved in 41% of river drownings between 2000 and 2012.  However, inland water way drownings have decreased by 45% in this period. Twelve children aged between 5 and 14 years drowned in 2017, of these drownings four occurred in a river, creek or stream, a rate of drowning which has been consistent for 10 years.  Swimming was the most significant activity prior to death, amounting to 42%, whilst watercraft accidents amounted to 8%; and falls into water 25%. 

5. I am not qualified to interpret these statistics in any expert way, other than to point out that drowning, for children, is a danger but not a statistically high one.  In contrast, in the same period, there were 1,224 road deaths in Australia, more than four times the level of drownings.  Yet most Australians, including the parents of children, through necessity, are willing to embrace the risk involved in utilising road transport, including when they go on holiday. 

6. In these circumstances, I do not consider that children camping, with responsible adults, near to a river, with all concerned able to swim, necessarily of itself, in purely objective terms, constitutes an unacceptable risk for children in general.  It is a level of risk many Australian families are prepared to take, when the benefits of a holiday in such a location are weighed against it.

7. However, that is not an end to the matter.  I must also consider the subjective characteristics of Mr Groves and his family, given that Ms Alessi has characterised them as being lackadaisical about safety in and around water and prone to the over consumption of alcohol, which is indicated above statistically plays a significant role in drowning deaths in this country. 

8. Apart from Mr Groves himself, I have no evidence from members of the children’s paternal family.  In addition, I have not been provided with any evidence regarding the river in question – how deep is it; how fast flowing; is it subject to flooding; are there any submerged hazards; – none of these issues has been explored in the proceedings before me.  I do know however, contrary to the submissions of counsel for the mother, that there are rarely, if ever, saltwater crocodiles in Queensland, south of Town B.[11] 

   [11]  See Queensland Government Department of Environment & Science (CrocWatch) website

9. Ms E found Mr Groves to be a considered person.  He has held down a job for a significant period of time.  There can be no doubt about his love for the children concerned.  In these circumstances, he does not seem to me to be a person who is inherently irresponsible or prone to recklessness.  As such, he is not likely to consciously or negligently expose the children to any possibility of coming to harm.

10. In addition, he knows the area in question well.  He grew up there.  It is part of his family tradition, which he wants to share with [X] and [Y].  These are understandable motivations.  In these circumstances, I do not consider that Mr Groves personally poses an unacceptable risk to the children, in the manner in respect of which he is likely to supervise the children, in or about water. 

11. [X] is eleven years of age; [Y] is six.  As such, they can be given directions in respect of safety in and around water.  I have not been told that they are unable to swim.  In all these circumstances, I do not consider that it would represent an unacceptable risk to the physical safety, of these children, if they spend an extended period of time, in their father’s care, at the property concerned in Town A. 

12. I accept that this location, given its proximity to water, cannot be rendered completely risk free.  I agree, however, with Ms E’s assessment, that it is frequently beneficial for children, to engage in new experiences, which test and challenge the boundaries of their previous experience. 

13. Ms Alessi’s objection to Mr Groves’ proposal does not lie on safety concerns alone.  It is her position that [X], in particular, will be resistant to spending time with his father, for such an extended period of time and Mr Groves lacks the parenting skills to manage him, particularly in the context of [X]’s gender dysphoria.  In this context, Ms Alessi seeks to re-engage Ms E to examine these issues with [X]. 

14. Given [X]’s behaviour, at the observed interaction with Ms E, it seems highly likely that, if specifically asked, he will indicate a disinclination to spend extended periods of time, with his father, including in Queensland. 

15. In her report, Ms E specifically addressed the issue of [X]’s loyalty to his mother.  She was concerned at the possibility that her solicitousness for the children was bordering on being over-protective and tending towards alienation.   In this context, Ms E considered that there were likely to be significant benefits for [X] from having a strong relationship, with his father, which would provide him with a balanced view, including whilst [X] was engaged in the gender transition process. 

16. I acknowledge, pursuant to section 60CC(3)(a) of the Act, the court is required to give consideration to any views expressed by a child. However, the court is also required to consider any other factors, including the maturity of the child concerned, which may be influential in respect of how much weight those views should be given.

17. Given the intense level of conflict between the parents concerned in this case and the risk of [X] being alienated from his father, I consider that a significant level of care should be taken in respect of both the overt canvassing of [X]’s views and more specifically the overall weight, which they should assume in these proceedings. 

18. [X] is on the cusp of puberty.  In my view, he is not sufficiently mature to have an overview of the benefits, which he will derive, both now and more importantly as he passes through adolescence, of having a meaningful level of relationship with his father.  It is likely to be important, for [X], if and when he completes the transition in question, that he have access to a balanced male role model.  The person best suited to fill this role is his father.

19. Overarching all these considerations is the personality and psychological make-up of Ms Alessi herself.  She has been diagnosed as suffering from anxiety.  This is potentially a debilitating condition and Ms Alessi is not to be penalised for it.  Rather, it represents another consideration, to which regard must be had, in assessing the best interests of the two children concerned. 

20. To his credit, Mr Groves acknowledges that Ms Alessi is a good and loving parent, whom he described to Ms E as a typical protective mother.  In this context, he acknowledged that it was likely to be difficult for Ms Alessi to overcome her anxieties as this was just the way she is.

21. Accordingly, although in objective terms, many of Ms Alessi’s fears may not have a strong grounding in fact, I am not in a position to ignore them.  In B & B[12] the Full Court said as follows:

    “…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection.  As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”

    [12] B & B (1993) FLC 92-357 at 79,780

22. To Ms E, Mr Groves demonstrated a measured and sensitive attitude towards [X]’s gender dysphoria.  In particular, he indicated his concern about the high level of self-harm amongst such children.  It is, I think, noteworthy that, notwithstanding the significant level of conflict between the parties, about very many issues, there is no apparent dispute about the manner in which [X]’s condition should be professionally treated.  In these circumstances, it seems to me to be improbable that Mr Groves would actively disparage [X] or permit anyone else to do so.

23. However, as with concerns about exposure to water, Ms Alessi is not likely to easily accept my analysis.  Rather, she is likely to remain opposed to the proposal of the father and this, in turn, may have implications for the children themselves and particularly how Ms Alessi supports their ongoing relationship with their father, which Ms E regards as central to their welfare.  In this regard, it is particularly noteworthy that [Y] has expressed desire to spend more rather than less time with his father. 

24. As previously indicated, Ms E recommended that Ms Alessi seek some psychological support to assist her with dealing with her level of anxiety.  Clearly, this support cannot be provided in the short period of time leading up to the Christmas holidays in 2018/2019.  In my view, such an intervention is likely to be helpful in the longer term.

25. In these circumstances, when combined with the mother’s resistance and anxiety to interstate travel, these are factors which militate against making the orders sought by Mr Groves at the interim hearing stage.  In addition, in my view, it is also noteworthy that the December 2016 orders, in effect, deferred this issue, which has been controversial for a significant period of time. 

26. Although it is tempting to yield to the appeal of pragmatism and make the order as sought by the father at this interim stage, on the basis of Ms E’s recommendation, given the controversy of the issue and the fact that at the earlier stage, in deference to that controversy, the parties agreed on a moratorium in respect of it, I have come to the conclusion that it is a final hearing issue.

27. However, I am concerned that the mother’s current proposals for holiday time raise significant logistical issues.  Her proposal is also not in line with how the parties agreed the issue of holiday time in the order of December 2016.  The father’s time, under her proposal, is spread out over each of the weeks of the school holiday.  In my view, it is likely to be more helpful, to the children, to extend their relationship with their father if the time occurs in longer interspersed blocks of time, as the earlier orders envisaged.

28. For these reasons, I intend to revert to the December 2016 orders, in respect of the long school holiday period, but pending further order will continue the restriction on interstate travel.  I am concerned that to do otherwise has the potential to create unforeseen consequences and intensify the mistrust between the parties concerned and exacerbate Ms Alessi’s anxiety.  In my view, these factors dictate a cautious response be applied but, in my assessment, Ms Alessi’s proposal is unduly restrictive.

29. As is apparent from these lengthy reasons of judgment, I have spent a significant amount of time in considering the issues, which this case throws up.  Some may consider that the time spent has been excessive, given the issue in dispute, namely whether the children should go on an interstate holiday to Queensland. 

30. However, in my view, this issue is emblematic of very many other issues arising between the parties, which chiefly centre on their different value systems and attitudes towards how [X] and [Y] are to be parented.  These issues also arise in the context of a child who must be regarded as being vulnerable as a consequence of his nuanced gender issues.

31. Although it is trite to point it out, these issues of competing and differing value systems are not likely to be resolved in the context of an acerbic final hearing.  In addition, some of the issues raised by Ms Alessi, such as the balancing of Easter time with time on her birthday, cannot be regarded as significant in their nature and so warranting such a hearing.

32. These proceedings are categorised as child-related proceedings and as such require the court to consider carefully how it is to be managed. Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:

    ·the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.

    ·the court is to actively direct, control and manage the conduct of proceedings.

    ·proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.

    ·proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.

    ·proceedings are to be conducted without undue delay, formality and legalism.

33. For the reasons already provided, I am concerned that for the court to re-engage Ms E, in the manner advocated by Ms Alessi, will only exacerbate the potentially deleterious impact of these proceedings on [X].  Certainly, I doubt that it will be an intervention which will enhance any capacity the parties have to cooperate with one another.  Rather, it will have the potential to draw [X] deeper into the conflict between them and add to the polarisation, already extreme, in this case.

34. In these circumstances, I decline to order the addendum to the report as sought by the mother.  I have reached this conclusion on the basis that I do not consider it to be a child-focussed intervention.

35. The irony thrown up by this case is that although the gulf between their respective traits as parents is likely to be and remain wide, when their dispute is boiled down, it does not raise a plethora of complicated issues.  In these circumstances, the court’s natural inclination is to work towards the avoidance of any potentially acerbic and expensive final hearing, particularly given the comparatively recent final resolution of the parenting issues in December 2016.

36. Mr Groves has indicated his willingness to return to these orders, on the proviso that he is able to take the children to Queensland.  Ms Alessi has apparently aspirations to take the children overseas to attend the wedding of a relative, an issue which was not agitated in the current proceedings.

37. It would appear unlikely that it will be considered to be in the best interests of these children that there be a permanent moratorium on their travelling interstate or overseas.  In general terms, there are many benefits for children from being able to travel.  It is interesting; it broadens horizons; and if travel to family is involved, it enhances a sense of connection to that family.

38. In the context of these extensive reasons for judgment, in which I have attempted to encapsulate the relevant legal principles applicable and summarise the evidence, I would invite the parties and their legal advisors to consider their respective positions, in an attempt to avoid the final hearing currently scheduled.

39. In all these circumstances, notwithstanding the care which must apply to the application of family report recommendations prior to final hearing, I have decided to adopt Ms E’s recommendation regarding the re-implementation of the December 2016 orders. 

40. In this context, I can see no difficulty in re-implementing all the orders, including the order previously agreed upon regarding time on alternate Mondays, during term time.  The formal order of the court will be that orders 1 to 24 (inclusive) of the orders of 22 December 2016 are reinstated.  In addition, I will make the order proposed by the mother regarding electronic communication.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     14 December 2018