Allred & Allred (No 2)
[2022] FedCFamC1F 803
Federal Circuit and Family Court of Australia
(DIVISION 1)
Allred & Allred (No 2) [2022] FedCFamC1F 803
File number(s): PAC 2506 of 2020 Judgment of: RIETHMULLER J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision of a Senior Judicial Registrar – No matters of principle Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 8 July 2022 Place: Parramatta Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms Stolier Solicitor for the Respondent: Raftons Family Law Counsel for the Independent Children’s Lawyer: Ms Shea ORDERS
PAC 2506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLRED
Applicant
AND: MS ALLRED
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
RIETHMULLER J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The orders 5 to 7 (orders providing for the father to obtain a psychiatric assessment) of the orders made by a Senior Judicial Registrar on 4 February 2022 be discharged.
2.The Independent Children's Lawyer be at liberty to contact the associate to the Honourable Justice Hannam to request that the matter be listed for trial on a date not before three months from the date of this order.
3.The Review Application be otherwise adjourned to 8 July 2022 at 2.15pm.
THE COURT NOTES THAT:
A.The father has confirmed that he understands that the Family Report recommends a psychiatric assessment of the father, and that should he decline to facilitate the preparation of a psychiatric report the trial Judge may draw an adverse inference from his decision to decline to facilitate the preparation of a psychiatric report when considering his mental health in the context of determining parenting orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allred & Allred has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
The applicant father filed an Application for the Review on 22 February 2022 seeking the review of a decision of a Senior Judicial Registrar made on 4 February 2022. Those orders provided as follows:
IT IS ORDERED PENDING FURTHER ORDER THAT:
1. All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for the children [X] born 2005 and [Y] born 2010 (“the children”).
3. The children shall live with the mother.
4. The children shall spend no time with the father.
5.The father shall obtain a comprehensive psychiatric review undertaken by a psychiatrist nominated by the Independent Children’s Lawyer, and for this purpose the father shall:
(a)Within fourteen (14) days of the Independent Children’s Lawyer nominating a psychiatrist, contact the psychiatrist and accept the earliest appointment offered;
(b)Request that the psychiatrist complete a comprehensive mental health assessment of the father;
(c) Attend all appointments as requested by the psychiatrist; and
(d)Provide a copy of the mental health assessment to the Independent Children’s Lawyer and to the mother’s legal representative as soon as reasonably practicable and within seven (7) days of receipt of the mental health assessment from the psychiatrist.
6.The father shall be responsible for any and all costs associated with procuring the mental health assessment referred to in the previous order and attending any appointments he is required to attend as directed by the psychiatrist.
7.Leave is granted for a copy of the report dated 4 February 2021 prepared by [Dr C] in these proceedings to be made available to any practitioner the father attends upon for the purpose of obtaining a mental health assessment pursuant to these orders.
8.The Application in a Proceeding filed on 16 December 2021, as amended on 17 December 2021 is dismissed.
9.The orders sought by the father in the Reply filed on 2 February 2022 are refused.
The applicant father seeks alternative orders in the following terms:
1. Order made on 4 February 2022 to be revoked and dismissed.
2.Immediate time reinstated with my young children [X] and [Y].
3.My matter to be re-assessed and reviewed due to unfairness towards me in the conduct of my matter including that my evidence was not relied upon from the start due to the mother and my ex-employer, the police coordination of working together to set me up with evidence by myself already put before the Court. More evidence than balance of probabilities.
4.To have the ADVO granted by consent from the father upon the mother’s request on [… 2020] in agreement by both parties at court that the children will come home to the father. The mother then used the ADVO against the father’s person for wrongful, unlawful purposes since granted on [… 2020]. The father granted ADVO in good faith and trust which was abused by the mother.
5. For this application to be made as urgent.
6. For stay order to be placed on child support agency.
Background
The applicant father was born in 1972 and the respondent mother was born in 1973. The parties commenced their relationship in 1989, residing in Country B at the time. They were married in 1993 in City D, Country B. The parties first migrated to Australia in late 1998, and spent approximately six months living in Country E from early 2007, before they returned to Australia in mid-2007.
There are five children of the parties' relationship, three of whom have attained 18 years of age. These proceedings concern the parties' youngest two children: Y, born 2010, who is presently 12 years of age, and X, born 2005, who is presently 16 years of age.
The parties have had a particularly difficult relationship. There have been extensive proceedings in the State Courts involving domestic violence allegations and the New South Wales Police. The state of the allegations with respect to domestic violence is hotly contested between the parties and cannot possibly be resolved on an interim basis, and rather will require a full hearing on the evidence before a judge at trial.
The two children have lived with the mother since early 2020, and have spent no time with the father since an ADVO was put in place in early 2020 for the protection of the two youngest children, the mother, and the parties' only daughter (23 years of age).
On 17 September 2020, the matter came before Hannam J where interim parenting orders were made by consent, as follows:
2. By consent and pending further order,
a.The mother have sole parental responsibility for [Y] born [2010] and [X] born [2005] (“the children”).
b. The children live with the mother and spend no time with the father.
On 29 September 2020, Hannam J made orders appointing a single expert to prepare a report relating to the welfare of the two children. The Family Report was released to the parties by a registrar on 23 March 2021. The Family Report was extensive and prepared after interviews with the parties, the two children, and the parties' daughter.
It is useful to quote a number of paragraphs from the Family Report dated 29 September 2020 (although released much later) to provide a reasonable background to the issues that the parties bring before the Court in this matter. The report writer commented upon the parties at paragraphs 115-116 as follows:
115.As such, it is the finding of this assessment that [Ms Allred] does not appear to pose any risk of harm to any of her children at the present time. When considering [Mr Allred] however, the same conclusion cannot be reached. [Mr Allred's] presentation during interview, his responses to questions posed to him, and his behaviour and communications post the completion of the assessment, all raise concerns as to the manner in which he conducts himself and the very obsessional and incessant nature of his communication when he wants to be heard. Noting the substance of the individual interviews conducted with [Ms F], [X] and [Y] regarding their father, leaves open a conclusion of a psychologically fragile but also extremely volatile individual. There remains serious concern as to the stability of [Mr Allred's] mental health and it is strongly suggested that a comprehensive psychiatric review be ordered by the Court before any decision on future care arrangements are made, or at the very least before the requirement of supervision is lifted.
116.During interview with [X] and [Y], both boys emphatically stated that they wanted to remain in their mother's full time care and see their father for day visits without overnight time. They expressed that they had found the extended time in their father's care to be challenging, with minimal engagement, observation and daily care reportedly provided to them during this time. Similarly, [Mr Allred's] lack of interest and willingness to ensure consistent school attendance for both children is an area of great concern.
(Family Report dated 29 September 2020)
The report writer also commented upon the childrens' presentation at 121–122, as follows:
121.It is evident that [X] and [Y] have experienced considerable distress regarding the ongoing conflict they have observed between their primary caregivers which appears to have varied in intensity but for the most part been a chronic presence in their lives for many years. Both children have shown positive attachment behaviours towards their mother, and in fact appear to be comfortable and relaxed in her presence. It is this clinician's opinion that there was no evidence found during the current assessment to indicate that [Ms Allred] displayed the psychological symptomology indicative of an individual who may pose a serious risk of significant harm to her children.
122.Noting the extreme nature of such an outcome, the prolonged removal of [Mr Allred] from [X] and [Y] may in this instance may be the only available option to ensure that their emotional development and their psychological wellbeing is preserved. [Mr Allred's] parenting style would benefit from review and engagement in reflective therapy and a parent skills education program. The opportunity for supervised visits between [Mr Allred], [X] and [Y] should be considered, although it would seem that the only option for this to be successful would be through an registered supervisory agency. [Mr Allred's] inherent insecurity associated with abandonment now appears to be being directed toward [X] and [Y] and this appears to also be influencing and enhancing is inherent need for control. For the sake of the mental health of their children, both parents need to reflect deeply on the observations made in this assessment and engage in some well targeted, evidence-based therapeutic intervention. It is considered that the [Allred] family would be unsuitable to engage with a Family Dispute Resolution (FDR) mediator.
(Family Report dated 29 September 2020)
The report writer turned to consider the future directions of the matter and importantly made the following comments:
127.Both [Mr Allred] and [Ms Allred] would benefit from completing a parenting after separation course to assist them to better understand the impact their ongoing conflict and relationship dysfunction is having on their children. This should be followed-up with parent education courses such as “Tuning into Teens”; and “Triple P for Pre-teens and Teens”. Both parents would also benefit from understanding the very detrimental, potentially life-long impact, parental conflict, neglect and abuse has on the children.
…
136.When considering [Mr Allred's] ability to meet the needs of his sons, in particular their developmental, physical, psychological, emotional and intellectual needs, he is thought to have a rather limited capacity and it is clear that he also needs to pay much closer attention to the consequences of his behaviour on his children. He has shown his ability to empathise for his sons' emotional wellbeing, and his distress that he feels that this is not being met while he is unable to see them. However, it needs to be noted that his tendency to denigrate their mother in their presence, his blasé attitude towards their school attendance and education, which is it noted, appears to be motivated more to assuage his feelings of loneliness without them, and his coercion and emotional manipulation are all likely to only be serving to make his children feel that they are under pressure from him constantly. Further, such behaviour only raises additional concerns about his ability to separate his own fears and insecurities (of being abandoned), from his relationship with his children. He too would do well to review his behaviour with an experienced therapist.
…
141.[Mr Allred] was found to have concerning emotional displays, showing an overly emotional personality throughout the interview and assessment, which continued in the communications that occurred following the completion of the assessment. There was sufficient evidence in the provided documentation and within the interviews with parties, to conclude that [Mr Allred's] behaviour in this regard was a pervasive and chronic pattern about which he had little insight as to the impact it had on those around him. His behaviour is considered to have had a very significant impact on his capacity to parent effectively.
142.It was evidenced in the documentation provided that [Mr Allred] is currently receiving treatment for [mental health issues] from [Mr G], psychologist, since 2017. There is some concern that [Mr G] is not privy to information which may allow him to make a more accurate assessment of [Mr Allred's] complex mental health presentation and the impact his behaviours are having on his children and [Ms Allred]. As such, it is strongly recommended that [Mr Allred] be mandated to attend a minimum of 15 sessions with an appropriately qualified clinical psychologist who has experience treating individuals with complex personality presentations within the context of a conflicted family court dispute.
143.It is considered highly unlikely that [Mr Allred] will be willing to address any identified problem, as his lack of insight about the nature of his behaviour will preclude him from believing that he has any need to.
…
156.As recommended in the body of the report, and noting the extreme nature of such an outcome, the prolonged removal of [Mr Allred] from [X] and [Y's] life may in this instance be the only available option to ensure that their emotional development and their psychological wellbeing is preserved.
(Family Report dated 29 September 2020)
It is obvious on the face of the Family Report dated 29 September 2020 that there is a real question as to whether or not time between the father and the children may be in the childrens' best interests given the difficulties between the parents, and the emotional presentation of each of the parents in their interactions. The report writer, however, is clearly alive to the need to consider whether or not there should be supervised time between the father and the children, and the difficult question that this issue presents to the Court.
Turning to the hearing before Hannam J on 17 September 2020, and the interim parenting orders made by consent on that occasion, it is worthwhile noting that this Court event occurred with the benefit of lawyers representing both the parties (and counsel for the father), and a lawyer as the Independent Children's Lawyer. At the hearing, the Independent Children's Lawyer made recommendations which Hannam J engaged with: see Transcript 17 September 2020, p.9 lines 7-11.
Her Honour, not surprisingly, turned to counsel representing the father to ascertain the position that the father would take in the proceedings. The relevant exchange between her Honour and counsel for the father appears in the transcript, following the articulation of the Independent Children's Lawyer's preliminary position that there not be time between the father and the children at that point: see Transcript 17 September 2020, p.9 lines 18-44.
The exchange occurred as follows:
HER HONOUR: And what do you say, [Mr H]?
[MR H]:Your Honour, it’s certainly not my client’s position that he have no contact with his children. But I understand the orders, or the recommendations. I’m in your Honour’s hands as far as those orders are concerned.
HER HONOUR: Well, I’m not going to hear from parties and have to make a very short give reasons if in fact there’s consent given to them. But in circumstances where he’s not pressing for any orders, and we’ve currently got a somewhat tenuous arrangement for the children because they don’t know where they stand, and in the recommendations do you oppose that and wish to say something about them because that’s what the ICL is seeking? Or do you consent to them?
[MR H]:Your Honour, can I just have a moment?
HER HONOUR: Yes.
[MR H]:Thank you. Your Honour, despite my client’s firm desire to see his children and speak with his children, he consents to the orders in the circumstances.
HER HONOUR: All right. Well, I will make the order by consent, pending further order, that the mother have sole parental responsibility for the children, that the children live with the mother and that they spend no time with the father. I will make those further orders in relation to the appointment of [Dr C] once that has been circulated. And if there’s no difficulty with it, I will simply make that order in chambers and relist the proceedings after [Dr C’s] report is available.
(Transcript 17 September 2020, p.9 lines 18–44)
The father argues that the orders of 17 September 2020 were, in fact, made without his consent. That does not appear on the face of the transcript. Rather, the transcript indicates that they were clearly made with his consent, noting as he has submitted before me that he was present in the courtroom at the time.
The father's material filed for this Application for Review also includes a letter from his former solicitors which clearly states their view that the orders were made by consent, and were not made without the consent of the father: see letter dated 12 January 2022, marked Exhibit 2 in these proceeding.
The father also referred to a "contemporaneous transcript" of a conversation he had with one of his previous lawyers on 20 December 2021 which, while difficult to follow, on one reading may indicate some level of equivocation by former lawyers, and on another level indicate a young lawyer attempting to deal with a difficult and disappointed client.
The short point, however, is that there is a clear statement in the letter dated 12 January 2022 from his former lawyers who represented him at the hearing on 17 September 2020 before Hannam J, who were not subpoenaed to give evidence today, and nor was counsel requested to provide an affidavit, or appear today. The father was today offered the opportunity to give oral evidence today on the question of whether or not the orders were made without his consent, if he so wished, to have me determine the matter on the evidence that is available today. He was also offered the opportunity to have me determine that question on the papers. It is not surprising that he did not wish me to determine the issue on the papers, given the powerful evidence of the Transcript of 17 September 2020 and the solicitor's letter dated 12 January 2022, contrary to his statement as to his position the orders of 17 September 2020 were made without his consent.
Given the difficult evidence confronting the father on this issue, it did not appear to me to be appropriate to hear the matter based on oral evidence today, and therefore I acceded to his request that that question would have to be dealt with at a final trial. It seems to me, however, that once the trial of this matter commences, that question will, in reality, be academic because the trial will turn on the current evidence as to the most appropriate orders to meet the best interests of the children.
In the circumstances, I am therefore of the view that the order by Hannam J made 17 September 2020 remains a valid order at this time, and that unless the father is able to show some circumstances since this time that would justify varying the orders, the orders of 17 September 2020 ought to stand.
I specifically raised this question with the father, and offered him the opportunity to point to some circumstances since 17 September 2020 which would justify varying the orders. The father raised a number of matters that he argues should lead me to review the interim parenting orders made 17 September 2020 as follows:
(a)In mid-2022, the father says that the NSW Police called him to talk to him about not filing an action about disputes that had been occurring in the State Court's proceedings. Whilst there is considerable complexity with that part of the case, it does not seem to me to bear upon the best interests of the children in the context of this hearing.
(b)The father expressed his denial of the allegations of family violence. There is no question that there are very serious allegations in this case and that the father strongly denies the truth and accuracy of those allegations made by the mother against him. There is no question that this will be a very significant and serious issue for trial which will require the hearing of detailed evidence. This issue, however, is no different to the issue with respect to domestic violence at the time the matter was before Hannam J. It is not a case where one of the parties had addressed any alleged behaviours, nor is it a case where it is said there are any significant changes in the behaviours or conduct.
(c)The father pointed out was that the last contact he had with the children was in around 2020. It is a difficult situation to be waiting for a trial in a case such as this where there is an order for no contact, and where the waiting list for trials is a long one at present, as a result of the number of matters pending and the present availability of judicial resources. That, however, has not altered the circumstances upon which the orders were made by Hannam J on 17 September 2020. Indeed, if anything, the wait has reduced a little because at the time that Hannam J made the orders she was the only Division 1 judge in the registry (of the Federal Circuit and Family Court of Australia), and it was not until the following month that a second judge, myself, was appointed to this registry. Thus at the time, Hannam J would have been considering the case in the context of being the only judge to hear the backlog of cases.
(d)The father articulated that he is able to provide a stable home. It became clear that he says his house has always been stable, that his home has always been stable, both before and after the orders were made on 17 September 2020.
The above submissions by the father do not appear to me to show facts or circumstances which would justify the varying of the orders made 17 September 2020.
However, the father does identify one change of circumstance since the orders made 17 September 2020 in that he has obtained employment which involves supervising a very large number of people. The father says he is in a position, on his version from the bar table, of considerable responsibility in that employment, and that is not addressed in his affidavit material. In the context of the issues articulated by the report writer in the Family Report dated 29 September 2020, it does not appear to me that the father obtaining of a stable form of employment, albeit with considerable responsibility, is a change that would justify revisiting the question of interim orders as made by her Honour.
Therefore, in the circumstances I am not persuaded that the father has been able to show the facts or circumstances that make it appropriate to exercise the discretion to vary the interlocutory order that was previously made by Hannam J on 17 September 2020.
Thus, the Senior Judicial Registrar 's order of 4 February 2022 that set aside Hannam J's order ought to be discharged so that the orders of 17 September 2020 remain in place. To the extent that the Senior Judicial Registrar then went on to make orders effectively in the same terms as the previous orders of Hannam J, those orders should be discharged as it is not necessary or appropriate to have two judicial officers making, in substance, the same orders, one after the other.
As a result, no further interim parenting orders should be made today.
Psychiatric Assessment
On the last occasion the matter was before me on 27 April 2022, I discharged orders for psychiatric assessment of the father and for him to pay for that psychiatric assessment. I will give some brief reasons for that now, although it would be apparent from the transcript what those reasons are.
In substance, there are two difficulties with those orders, as follows:
(1)There was no consideration of the capacity of the father to meet the costs of those orders, nor indeed, any evidence of what that cost would be. In those circumstances, I discharged those orders as the father on that occasion was without employment. It was not appropriate in my view, to make orders that a person is unable to comply with as a precondition to having a trial.
(2)The father clearly stated that he does not intend to attend upon a psychiatrist for a report. It seems to me in the context of this case that is his right. The father was made well aware of the adverse inferences that may well be drawn by a trial judge if he declines to attend upon a health professional for a further psychiatric report or seek legal aid funding for the Independent Children's Lawyer for such a report to be made available. The father is aware of this and remains opposed to attending upon a psychiatrist.
In these circumstances, it does not seem to me that it is appropriate to make orders for the Independent Children's Lawyer to request legal aid funding for a psychiatric assessment which may otherwise be available.
The balance of the matters that are before me are effectively requests for orders relating to State Court proceedings which are outside the jurisdiction of this Court.
The final matter is a request for a stay with respect to the Child Support Agency. On the material before me, I am not persuaded that there is evidence to identify the precise nature of the assessment, the steps that have been taken to challenge the assessment nor the need for a stay at present. It seems to me more likely that it is no longer a necessary order in any event, as the father now has employment in a significant position. The father will no doubt make an application to the Child Support Agency for such variation as might be appropriate to reflect his current financial circumstances. In submissions, this issue was not pressed before me, in any event.
In the circumstances, it seems to me that all of the orders of the Senior Judicial Registrar ought to be discharged and the father's Application for the Review filed 22 February 2022 be dismissed.
The father is awaiting trial in the Court lists and no doubt will be provided a trial date once a judge is available to hear the matter. It is appropriate, in my view, that all outstanding interlocutory applications be formally dismissed so that the matter can simply be listed for trial on the substantive issues.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 8 July 2022
0
0
0