Arcadis & Arcadis

[2021] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

Arcadis & Arcadis [2021] FCCA 1935

File number(s):

DGC 1285 of 2021

Judgment of:

JUDGE BURCHARDT

Date of judgment:

6 August 2021

Catchwords:

FAMILY LAW – Application for summary dismissal by grandparents with whom children aged 14 and 12 live – significant issues with mother’s mental health – children expressing clear views as to reticence to see mother – whether children should undertake therapeutic counselling to see if time with mother is practicable – orders for counselling made – application for summary dismissal not granted.

Legislation:

Family Law Act 1975 (Cth),

Federal Court Act 1976 (Cth)

Cases cited:

Re K (1994) FLC 92-461

Spencer v Commonwealth of Australia [2010] HCA 28

Number of paragraphs:

39

Date of last submission/s:

6 August 2021

Date of hearing:

6 August 2021

Place:

Dandenong

Counsel for the Applicant:

Ms Wilkening-Le Brun

Solicitor for the Applicant:

Peninsula Community Legal Centre

Counsel for the First and Second Respondents:

Ms Morkos of Counsel

Solicitor for the First and Second Respondent:

AAB Lawyers Pty Ltd

Advocate for the Third Respondent:

No appearance on or on behalf of the Third Respondent

ORDERS

DGC 1285 of 2021

BETWEEN:

MS ARCADIS

Applicant

AND:

MS B ARCADIS

First Respondent

MR ARCADIS

Second Respondent

MR HAGINS

Third Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	6 AUGUST 2021

THE COURT ORDERS THAT:

1.

The matter be adjourned to this Court for mention before Judge Burchardt

on 26 November 2021 at 9.30 am.

2.The Final Orders dated 22 February 2017 remain in full force and effect.

3.Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children X born in 2007 and Y born in 2009 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

4.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer shall file a Notice of Address for Service.

5.Within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

6.The maternal grandparents will provide the mother will a copy of a school photograph, notices, school reports from the children’s school to the mother;

7.That the parties and children attend upon Ms C or other similarly experienced psychologist for the purpose of providing expert guidance through reportable family therapy and the costs of the therapy to be paid for by the mother.

8.Grant liberty to the parties to provide the section 11F report to the Ms C.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Arcadis & Arcadis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Revised from Transcript

JUDGE BURCHARDT

1. This matter was commenced by an application filed by the mother on 30 March 2021.  As final orders, she sought shared parental responsibility with the grandparents, and that time take place between her and the children on a basis not then indicated, but to be indicated after receipt of a family report.  In terms of interim orders, she essentially sought time supervised by her support worker, albeit on an increasing basis, and a section 11F report.  The response filed by the grandparents on 9 June 2021 sought that the application be dismissed and that the orders made on 22 February 2017 be retained, or in the alternative, two hours of supervised time supervised by D Family Services.  On 4 August 2021, the mother filed an amended application.  The final orders she sought were the same as those in her original one.  There was some tweaking to the interim orders sought.  It was thought that there would be, at the start, two hours of supervised time subject to at least two sessions of family therapy. 

2. Turning to the material filed by the parties in support of their application, the mother’s first application sworn on 29 March 2021 indicated that she suffered from autism, depression and anxiety.  She gave a history relating to the circumstances of X, born in 2007, and Y, born in 2009.  She deposed that they lived with the grandparents from 2017 onwards.  She deposed to the orders made in 2017, and indicated that she was not being represented and pressured into agreeing to those orders.  She deposed to being kicked out of the grandparents’ home shortly thereafter, and – in putting the matter admittedly rather broadly – that she was prevented from having contact with the children by her own mother.

3. She deposed to an intervention order in March 2020.  She made reference to her fiancé, Mr E.  She deposed to being in good health.  She deposed to X suffering from ASD and anxiety, and she complained in fairly detailed terms of alleged manipulating behaviour on the part of the grandmother.  On 7 April 2021, Ms F filed and swore an affidavit.  That affidavit indicated that he is a team leader at G Disability Services and is the mother’s National Disability Insurance Scheme coordinator and advocate.  Much of what is deposed is hearsay, but I note that in one paragraph, he deposed to the mother becoming depressed between December 2020 to March 2021, resulting in hospitalisation.

4. Paragraph 15 is worth reading out.  It says:

   I say I fear for her wellbeing as over the 3 years I have worked with Ms Arcadis, I have personally witnessed the emotional abuse the maternal grandparents have perpetrated on Ms Arcadis by withholding access to her children.

5. I would pause to remark that it is very apparent that the deponent is very partisan. 

6. On 7 June 2021, the grandmother filed her responding affidavit.  She took issue with the mother’s assertion that she suffered from autism and deposed that she in fact had been diagnosed with borderline personality disorder at a young age.  She deposed that X suffers from an intellectual disability, mild autism and certain associated issues.  She deposed that there had been no material change of circumstances and that, contrary to the mother’s affidavit, the children had been living with the grandparents since 2012.  She deposed that the mother displayed various forms of difficult and abusive and violent behaviour while living with them.  She also deposed that Judge Jones had read the orders made in 2017 out in open court to the mother, who was well able, it was put, to understand them.  It was put that the mother had left the home voluntarily and not been kicked out, and – putting the matter once again in the round, to an extent – deposed that the children were flourishing in her care and that of the grandfather. 

7. She annexed, at -1, a report from Dr H dated 11 October 2020.  There are two short extracts from this letter I propose to read out.  First of all, Dr H wrote:

   As you recall, X has not seen her mum that often during this year.  X gets upset/annoyed when her mum texts her.

   And there is a further extract:

   As you recall, X has autism spectrum disorder, severe language disorder, mild intellectual disability and sensory processing issues.  I understand that X’s NDIS plan will be renewed in the near future.

8. -3 is a note written by the mother, it would seem, on 26 August 2016.  It is written in somewhat childlike handwriting, and asserts the following:

   I am stressed out and can’t cope with everything going on.  I think it will be for the best that Mum and Dad look after the girls, so I can move out. 

9. It purports to be dated 26 August 2016.  I would point out that the style and content of that message are in very marked contact to the sophisticated use of language in the affidavits filed on her behalf in this proceeding – a matter to which I will return.

10. Annexure -5 is a letter from the chaplain at Suburb J Primary School dated 7 October 2020, and I propose to read various extracts from it:

    My role as chaplain at Suburb J Primary School is a pastoral care/wellbeing role and so the aim is to provide a safe space for students to speak about any worries or issues they have and to support them in different strategies they might use to address an issue. I have seen Y since February 2020 at the request of the Assistant Principal and Y’s grandmother Ms B Arcadis. During this period I have seen Y a total of ten times. A couple of sessions have been group sessions with other students but the majority of times I have seen Y by herself. Recently, this contact has been remotely via computer due to the restrictions of home schooling.

    Y presents as a gentle, thoughtful and articulate child who appears to enjoy her sessions in the chaplaincy room and online. At the start, our sessions were mainly an opportunity to check in with how Y was coping with issues related to access visits with her mother as well as her general welfare. Over time, Y has opened up more about her relationship with her mother. Initially Y told me that she “doesn’t like to see Mum” because she didn’t like “her boyfriend because he yells and screams at me on the phone”. Y has also disclosed that she and her sister X “are very happy when Grandma says we don’t have to go and see Mum”. I feel that Y is conflicted as she has expressed that she feels guilty for not wanting to see her mother and has told me that she feels “pressured and confused because they are adults and I can’t be rude to them”. Y also appears to feel responsible for some of the conflict and once told me that when “Mum storms off” during access visits she feels “guilty about starting a fight with Mum as I asked her lots of questions”.

    Lately Y has appeared more agitated in regards to seeing her mother. She recently told me about a past incident with mum when she lived with them and “Mum hit the wall and screamed and X and I were so scared”. Y shared that her “biggest fear is that I will be made to live with Mum and I will have to take my bags and meet her”. She told me that this fear is the reason why she had written about “wanting to die” in her journal. We have worked through a range of strategies to help Y when she is feeling anxious including breathing exercises and other mindful practices..

11. I miss some of the text and continue on from the same letter:

    Y is a very resilient child despite the many issues in her family life. I believe this is due in large part to the incredibly supportive and secure environment she is provided by her grandparents. Y once told me that she has “a broken heart because of Mum” and “a healthy heart because of my grandparents”. Y is a perceptive and sensitive child who is very engaging and generally has a positive outlook on life. She is a delight to spend time with however I am concerned about the significant challenges the family is facing in terms of ongoing family conflict and uncertainty about access visits with mum. I believe Y would benefit from some level of certainty in these areas and being involved in making decisions about access visits with her mother. I am happy to be involved further in supporting Y so please feel free to contact me if you require any further information.

12. I pause to point out that that letter is more nuanced, more objective in its terms, in my view, than the support material filed on behalf of the mother.  There is a further document to which I will make passing reference, which is -6, which are a series of drawings and messages apparently, ostensibly, created by Y for her mother.  They are insulting.  They are written in what I would take to be a child’s handwriting.  I note that the mother says that these are more likely created by – well, inculcated, as it were – by the grandmother.  But on any view of the matter, they show a disturbing level of emotion on the child’s part.

13. The mother filed a further affidavit on 16 June 2021.  On this occasion, she admitted that she suffered from BPD, not autism, and said this was just a mistake.  She responded in detail to her mother’s affidavit, and I don’t propose to go through it all in any detail whatever.  But she did annexe a letter from Dr K, consulting psychiatrist, dated 16 June 2021, which relevantly says:

    In response to your email dated 15 June 2021, I have been seeing Ms Arcadis on and off since 2017.  She suffers from mild learning disability and major depressive disorder. 

    She is in complete remission on Cymbalta, 240 mg daily.  She has not been suicidal or engaged in any self-harm behaviours since I have known her. 

    She has been compliant with medication and very reasonable and insightful as to the need for treatment and a non-pharmacological approach to managing her mental health. 

    I have never had any concerns about her character or ability to look after the children. 

    However, I have major concerns about the other party restricting Ms Arcadis’s contact with her children based on her conduct in the distant past without any evidence of current problems whatsoever.  Divorce-related psychiatric issues is an area of interest of mine and I have had training in AFCC report writing and the impact of alienation and domestic violence on victims. 

    Children experience the alienation and absence of a parent as if that parent has died.  It is not normal for a child to refuse contact with a non-abusive parent and is always due to overt or naïve alienating behaviours.  As parental alienation is a form of child abuse, I would have more concerns about the other party acting in the best interests of Ms Arcadis’s children.

14. I pause to observe that that is a highly partisan view of the matter, based obviously on only one side of the story.  The mother filed a further affidavit on 2 August 2021.  In part, this contains a detailed response to the section 11F report that had by then been issued.  I note that she complains of the exclusion of her support worker during the interview.  Paragraph 14, she deposed under the heading “Supervised Time in Family Therapy”:

    I say that my current support workers are able to supervise my time with the children.  I have four support workers who attend my home on a regular basis.  They are all female.  The service they provide is emotionally supportive.  We go for walks together, they accompany me to some appointments, and they provide me with company and an opportunity to talk about any issues bothering me.  I say they would be the most appropriate supervisors.

15. She went on to depose to the assistance of NDIS funding and her capacity to pay for Ms C as a family therapist were that to be ordered. 

16. On 2 August 2021, Mr M, the mother’s partner, filed an affidavit.  It is supportive of the mother and accusatory of the grandmother.  Likewise, on 27 July 2021, Ms L, a social worker, swore an affidavit which once again is broadly supportive of the mother’s position.  Dr K, to whom I have already referred, has filed an affidavit on 5 August sworn 4 August 2021, which annexes a report – but not, I note, his CV.  The first paragraph says:

    In preparing this report in response to your request for a report for family court hearing this coming Friday, 6 August 2021. My understanding of circumstances surrounding this case is that Ms Arcadis has a defended hearing to decide if she meets the threshold for a change in circumstances according to the rule in Rice v Asplund.

17. He goes on to depose to his medical experience and the fact that he is one-third of the way through a Master of Law degree, and apologises – quite rightly, in my view – for the fact that he may transgress into that area, in which, of course, he is not yet fully qualified.  However, further on the same page, he wrote:

    I saw her on 3 August 2021 for the report, and explained the role of the interview and the limits of confidentiality prior to proceeding.  Unfortunately as she was an inpatient receiving electroconvulsive therapy, her memory had been adversely affected and she had difficulty with recall.  Her history, as a result, is somewhat vague and limited.

18. And I just interpose there – there is no mention of this treatment in the mother’s affidavit that I have been able to find.  I may be wrong.  The letter relevant continues:

    Ms Arcadis was first diagnosed in primary school with a learning disability.  She believes it was at about grade 3.  An assessment was conducted of her cognitive performance and was diagnosed with mild learning disability.

19. On the next page, the report relevantly for these purposes continues:

    She described ongoing difficulties in her relationship with her mother while she was living in the family home. She felt very controlled and that she could not parent her children the way she wanted. She stated she felt she was walking on eggshells the whole time. This culminated in her signing consent orders with her parents five years ago. She is adamant that these consent orders were forced on her and that she signed them without any legal advice or representation. She believes that as the orders stand she still has shared custody of her children with her parents. 

20. Continuing on, a bit further on:

    It has now been over 12 months since Ms Arcadis has seen her daughters.  She has a very naïve and idealistic outlook on the possibility of success in reunifying with her children.  She reported that she was looking forward to learning about them and having a wholesome meaningful relationship with them.  When specifically asked how she would manage verbally abusive and oppositional teenage girls, she responded by saying that she would have to seek help and learn how to handle them.  When asked why she should have a relationship with them, Ms Arcadis responded she is their mother and she needs to be part of their lives for them to have a happy upbringing.  I felt that this was not an unreasonable response…

    Her speech was of normal rate, tone and volume and she displayed a reasnalble (sic) command of the English language. 

    Ms Arcadis’s cognition was not formally tested.  My impression was that she was of borderline normal IQ.  She was able to read, write and operate a smartphone with ease.  Ms Arcadis suffers from mild learning disability and major depressive disorder that is treatment-resistant.  There is no evidence of any drug or alcohol or personality disorder. 

    I am really struggling to understand why Ms Arcadis is being rejected by her children.  She has always appeared well-groomed, polite, pleasant and cooperative.  Although unsophisticated and simple in her speech, Ms Arcadis has no overt signs of a learning disability or psychiatric illness that would cause embarrassment to a teenager.  I have observed her as an inpatient for several weeks while she has had the ECT.  It is extremely difficult for patients with personality disorders to last much longer than a few days before unravelling their problem behaviours.  This has not happened.  Ms Arcadis has been well-liked by all patients and staff alike.  Not a single complaint or criticism has ever been made from or about her by anyone.

1. Well, he is a very qualified psychiatrist, but he hasn’t really been able to keep himself particularly independent, as I would find, and has become entirely partisan.  That brings us to the section 11F report.  Paragraphs 5-6, the following is recited:

   Ms Arcadis alleged Mr and Mrs Arcadis had emotionally and psychologically abused her. She described Ms Arcadis as manipulating and controlling. Ms Arcadis denied ever having perpetrated family violence against either Mr or Mrs Arcadis or the children. She conceded having had verbal arguments with them, stating they were in the context of Mr and Mrs Arcadis attempting to control Ms Arcadis or withholding the children from spend time with her.

   Mr and Mrs Arcadis reported Ms Arcadis had perpetrated family violence over the years. They reported she would become aggressive, verbally abusive, intimidating and throw objects, bang walls and make holes when she did not get her way. They reported that Ms Arcadis had become increasingly verbally abusive in the past couple of years over the phone, inclusive of Mr M, who would both yell and make threats to “take the girls away.” Mr and Mrs Arcadis reported the threats to take the children increased and eventually led them to obtain an IVO. 

2. Paragraphs 8-9, it is recorded:

   Mr and Mrs Arcadis confirmed X was diagnosed with mild Autism and a mild Intellectual Disability and attends a specialist school. They reported X attends upon her school social worker for emotional support. They reported Y continued her engagement with her school chaplain for emotional support, however were looking at also recommencing with psychological supports. They reported both X and Y become stressed and highly anxious when Ms Arcadis is discussed. They reported Y, particularly, will as questions and want to know “the truth” as to what the current situation is regarding Ms Arcadis.

   It appeared challenging for Ms Arcadis to remain focused and was unable to provide any information regarding either X or Y, their interests or personalities. She insisted she was unable to answer any questions regarding the girls as she had been “blocked” from seeing and spending time with them for 12 months. The writer made multiple attempts to encourage Ms Arcadis to speak of her relationship with the children prior to this time. Ms Arcadis however remained fixed on “not going into the past” and stated she could not answer questions as she did not know the girls now.  Ms Arcadis was of the opinion that the children had been coached by Mr and Mrs Arcadis against her. She referred to a letter and voicemail sent by Y, stating it was not “her words.” She maintained the belief that Mr and Mrs Arcadis had coached the girls to refuse spend time and say ill things about and to her.

3. Paragraph 11:

   Ms Arcadis reported having a diagnosis of depression and anxiety, for which she took medication as prescribed by her psychiatrist. She denied ever having a diagnosis of Borderline Personality Disorder.

4. And I just pause there.  The first affidavit, she didn’t mention.  The second affidavit, she admitted it, and in interview she now denies it.  Paragraph 17 and following :

   17.X (14), presented initially shy and cautious. She was observed to be hyper vigilant and anxious.  She asked the writer to explain who could access the playroom, jumping at any noises, asking if it was her mother in the waiting area. She remained concerned for Y and her maternal grandparents, wanting to know where they were and if they were “ok.”  X was considerate in her responses and as she relaxed with the writer spoke at length expressing her thoughts and concerns candidly. X expressed feeling stressed, anxious and scared of Ms Arcadis. She reported feeling uncared for by her mother and that “she’s not really there, she’s rude.”  X asked the writer if she could promise her that she did not have to leave the home of the maternal grandparents, her school or friends, and that she did not want to see her mother. When the writer explained this was not something the writer could make decisions about or promise, X insisted that the writer write “in your book exactly how I said it.” X then checked to ensure it was written down.

   18.Y (11) presented as an intelligent, confident and mature young person. She was observed to be thoughtful and articulated her thoughts and feelings clearly. Y earnestly spoke to the writer of not wanting to spend time with Ms Arcadis. She described feelings of sadness, frustration and anger at Ms Arcadis’ behaviours. She openly talked about feeling “not normal” as other children who had a ‘mother’ and ‘father’ and expressed frustration that Ms Arcadis “can’t be one”, when asked what she meant, she stated “a good mum to us.” Y too, expressed feeling uncared for by Ms Arcadis, that when she had asked her questions, Ms Arcadis would get “annoyed and just leave us.” Y discussed feeling fearful that Ms Arcadis and her support workers would “take us away” and recalled several incidents with Ms Arcadis and various support workers that left her scared and worried. 

   ISSUES FOR THE CHILDREN

   19.Both X and Y are at developmental stages whereby they can express their wants and needs, beginning to form their own individual identities. It was apparent that both girls held complex feelings regarding Ms Arcadis, recalling negative memories and experiences of their time with their mother. The children described incidents whereby their mothers behaviour and presentation impacted on their ability to maintain friendships, made them feel unwanted, fearful or confused. It did not appear that the children had been coached or influenced, but rather were genuine and a reflection of their own experiences.

   20.It seemed the children’s expressions of fear and concerns regarding Ms Arcadis, have been perpetuated by direct commentary from the mothers support workers.  Commentary, inclusive of statements directly to the children, that the service (and workers) were in support of and helping to facilitate the children returning to Ms Arcadis care. In light of Ms Arcadis diagnoses, if true, this raises concerns as to whether misguided advice has been provided to the mother, without services (and/or workers) knowing and having access to the full context of the mothers vulnerabilities and the children’s lived experience.

   21.Ms Arcadis presented as an unreliable historian, observed to overstate some information and minimise or dismiss entirely at other times. Ms Arcadis was tangential in her responses, becoming highly emotive, emotional and self-focused at times. She was unable to provide consistent information, referring to her hand written notes throughout the interview for assistance. It was observed Ms Arcadis was unable to separate the adult conflict from the children’s expressed feelings, maintaining a fixed view and appearing unwilling to shift from this. The Court may benefit from obtaining further information pertaining to Ms Arcadis mental health and cognitive functioning.

   22. It was apparent that both X and Y are stable and thriving at school and in their extracurricular activities in Mr and Mrs Arcadis care. It was clear they have close and loving relationships with their maternal grandparents. Given the children’s respective ages and capacity for independent thinking, the Court may consider placing significant weight on their views and wishes.

5. Under the heading on the final page, “Future Directions”, the report states:

   25.For the children to live with Mr Arcadis and Ms B Arcadis.

   26.For spend time to be reserved. 

   27.For the children to engage in reportable therapeutic intervention with a view that any spend time be contingent to assessment and advice from their aforementioned therapist. That said professional have access to all collateral information.

   28.For the children to be appointed an Independent Children’s Solicitor.

   29.For the children to continue attending upon school counsellors/Chaplain for emotional support.

   30.For Ms Arcadis to continue attending upon her professional supports.

   31.Ms Arcadis may benefit from engagement in therapeutic intervention specific to supporting her through the current Court proceedings and complex relationship with her daughters.

   32.The Court may wish to consider this memorandum be provided to all health professionals involved with the parties and children.

6. Against that background from the materials, I turn to the parties’ submissions made this morning. Ms Wilkening-Le Brun for the mother pointed to the orders she seeks and the amended application which, it is said, follows the section 11F report. She emphasized that the consent orders were made when Ms Arcadis was not represented, and pointed to the fact she has not seen the children for 14 months. Ms Morkos for the grandparents sought summary dismissal. It was foreshadowed, pursuant to section 45A of the Family Law Act 1975 (Cth), that the grandparents’ care for the 14 and 12 year olds. She referred to the section 11F memorandum and the clear views of the children. It was sought that the current final orders should remain as they stand. The grandparents had sought supervised time, but the mother had not agreed. The support workers, it was pointed out, are there for the mother and not for the children, and reference was made to the Dr K report and the mother’s continuing mental health difficulties. They were, however, not opposed in broad outline to family therapy.

7. The law relating to summary dismissal is authoritatively determined in the case of Spencer v Commonwealth of Australia [2010] HCA 28. I propose to read some brief extracts from it. In the joint judgment of French CJ and Gummow J at [24], their Honours said:

   The exercise of powers to summarily terminate proceedings must always be attended with caution…

   “The power to order to summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”. 

8. Section 31A(2), which was the section of the Federal Court Act 1976 (Cth), it’s exactly the same as section 45A of the Family Law Act, was described in the following terms:

   Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. 

9. The plurality in that case, which was the joint judgment given by Hayne, Crennan, Kiefel and Bell JJ, set out the terms of section 31A, they’re identical to the terms of section 45A, which I will come to. They went on to say, at [51] and following:

   51First, the central idea about which the provisions pivot is “no reasonable prospect”. The choice of the word “reasonable” is important…

   52Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding or part of a proceeding may be found to have no reasonable prospect of successful prosecution, even if it cannot be said that it is “hopeless” or “bound to fail”.

10. And at [58] and following:

    58How, then, should the expression “no reasonable prospect” be understood?  No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antimony intended to capture most of or all of the cases in which it cannot be said that there is “no reasonable prospect”…

    59In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”), as “frivolous”, “untenable”, “groundless” or “faulty”. But none of these expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A.  Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim. 

    60Rather, full weight must be given to the expression as a whole.  The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success.

11. Section 45A relevantly reads, in subsection (2):

    The court may make a decree for one party against another in relation to the whole or any part of the proceedings if:

    (a)the first party is defending the proceedings or that part of the proceedings; and

    (b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

12. Subsection (3) reads:

    For the purposes of this section, a defence or proceedings or part of proceedings need not be:

    (a)hopeless; or

    (b)bound to fail;

    to have no reasonable prospect of success.

13. One needs to bear in mind the objects of the Act in section 60B, and the way in which matters are worked out pursuant to section 60CC, and I have regard to those matters.  And I bear steadily in mind that, pursuant to section 65AA, it is the children’s interests that are paramount.  What, then, is to be the outcome?  The mother lacks insight.  I refer to her inconsistent history relating her borderline personality disorder and her apparent failure to disclose in any kind of meaningful way what appear to be ongoing and very significant mental health problems.  Furthermore, it is immediately apparent that she did not write her own affidavits.  The affidavits contain very sophisticated English dealing with nuanced and complex thoughts that are entirely consistent with Dr K’s description of her behaviour and the handwritten note that she wrote only five years ago, in 2016, at which time she was a fully mature adult. 

14. The children do not want to see their mother.  That is important.  Even more important, they are upset at the prospect of it.  It is difficult to avoid the impression, based on the section 11F response, that the partisan support workers – who, it must be remembered again, are support workers for the mother – are not occasioning through their well-intentioned, and I have no doubt entirely well-meaning, endeavours.  Nonetheless, they are creating difficulties for the children.  In the end, the matter is finely balanced.  It is, as I repeat, a matter of the children’s best interests.  The order the mother seeks are not consistent, in my view, with the section 11F report.  They make an assumption that time will commence that is not contained within the recommendations in the section 11F report.

15. Having said that, it is important to remember what those recommendations were.  First, it was that time be reserved – in other words, there be no time for the moment. But it also recommended that the children – engage in reportable, therapeutic intervention with a view that any spend time be contingent to assessment and advice from the aforementioned therapist.  There was also a suggestion that the mother would gain from therapeutic intervention.  The grandparents, while opposing all time, have not been in their submissions utterly unequivocally opposed to some form of therapeutic intervention. 

16. In my view, and on balance, I think that the orders proposed in the alternative by the grandparents should be made.  The final orders dated 22 February 2017 should remain in full force and effect, and it is noteworthy that the mother seems to think she may have shared parental responsibility when it is clear as pike staff that that is exactly what the orders in 2017 do not provide.  They gave sole parental responsibilities to the grandparents, albeit shared between them.  I think that an Independent Children’s Lawyer should be appointed.  This is a troubling matter in which, quite plainly, the Re K (1994) FLC 92-461 guidelines are met. The provision of school photograph notices and the like to the mother is self-evidently desirable, and I think that the parties and children should attend upon Ms C.

17. But it should be emphasized that is not the children attending upon their mother with Ms C.  Care should be taken to ensure that they know that they will not be seeing their mother when they go to see Ms C, or their responses are highly likely to be stressed, resistant and the entire process is likely to be a burden upon them that they simply do not need.  The costs of the therapy can be paid by the mother, and should be.  Where I differ from the orders proposed by the grandparents is simply when this matter should come back.  Given the circumstances, October is likely to be far too soon.  I propose to bring the matter back with the Independent Children’s Lawyer on 26 November 2021, for further mention, at 9.30 am.

18. I will appoint an Independent Children’s Lawyer.  There will be interim orders in terms of the respondent.  Additionally, I am going to make the order proposed by Ms N, |the section 11F reporter, which will be to grant liberty to the parties to provide the section 11F report to Ms C.  I don’t need to make an order about the children continuing upon their school counsellors and chaplain.  That can continue in the ordinary way of things.  I have dealt with the therapeutic counselling that Ms N recommended, and the orders I’m making will also give the mother the therapeutic intervention that those orders considered.  And likewise, I am not going to make an order for her to continue on her medical treatment as presently is being undertaken because, of course, Dr K says that that is continuing anyway.

19. There are a couple of final remarks I would make.  First, I will expect to be far better informed in November about the true state of the mother’s mental health.  If she has been undergoing electric shock convulsive therapy and been in an institution for a month, or even for weeks, one would really want to know what on earth is going on, and I certainly don’t feel I do at the moment.  And the point of the interviews with Ms C is simply to see if there is a way forward.  It should not be taken as a datum that the end result of Ms C will be time with the mother.  The end result will be whether Ms C thinks it is in the children’s interests to do so.  With those remarks in mind, I will conclude this ruling. 

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       24 August 2021