Bayden and Joyce

[2017] FamCA 629

FAMILY COURT OF AUSTRALIA

BAYDEN & JOYCE [2017] FamCA 629

FAMILY LAW – RECOVERY ORDER APPLICATION – response to application seeks to vary parenting orders – where the evidence is vague and relies largely on what three year old child says – where reliance on pieces of opinion from psychiatrist which did not influence determination of earlier orders – where agreement reached to return child but minor dispute continues – orders made.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Bayden

RESPONDENT: Mr Joyce

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 97 of 2015

DATE DELIVERED: 22 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howe

SOLICITOR FOR THE APPLICANT: RRR Lawyers

COUNSEL FOR THE RESPONDENT: Mr Indovino

SOLICITOR FOR THE RESPONDENT: Peter Szabo Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Beckett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T J Mulvany & Co

Orders

1. That the child X (the child) be returned to the wife at 5.00pm this day on the forecourt of the Family Court of Australia – Melbourne Registry.

2. That paragraph 6 of the minutes attached to the orders made by consent of the parties on 18 July 2017 is varied to say that the husband’s time is to commence at 10.00am on 19 August 2017.

3. That the application in a case filed by the wife on 17 August 2017 and the response thereto filed by the husband on 18 August 2017 are otherwise dismissed.

4. That paragraphs 2, 4, 5 and 6 of the orders made on 12 April 2017 relating to the filing of material for the forthcoming final hearing are altered so that the husband file by 4 September 2017, the wife file by 18 September 2017, the husband have a right of reply by 25 September 2017 and the Independent Children’s Lawyer file by 25 September 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bayden & Joyce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 97  of 2015

Ms Bayden

Applicant

And

Mr Joyce

Respondent

REASONS FOR JUDGMENT

1. Having satisfied the registrar that the matter was urgent, an application in a case seeking a recovery order was filed on 17 August 2017 by Ms Bayden (the wife). The application was therefore listed at 2.15 pm on 18 August 2017 and served upon Mr Joyce (the husband).

2. The application sought the intervention of the Court for the enforcement of its extant orders so that the relevant Federal and State police officers could collect the child who is aged almost three years and return her to the wife, the husband having retained her outside the orders of the period in the court.

3. The husband filed a response to the application in a case on 18 August 2017. Both parties attended represented by counsel all of whom have had past involvement in the proceedings. the child’s interests were represented by an Independent Children’s Lawyer appointed long ago by the court.

4. The husband’s response sought:

   (a)variation of existing parenting orders so that the child live with him; and

   (b)That the child not spend time with the wife until various reports were made available or as otherwise ordered by the court (my emphasis).

5. This is an internecine war. Ultimately, with some intervention by the Court, there was an uneasy compromise, the most fundamental part of which was that the child be returned to the wife and that the extant substantive orders resume.

6. Paragraph [4] of these reasons and particularly (a) and (b) under which the husband wanted drastic court intervention, has significance.

7. The parents of the child are a health professionals; one might presume that they are not only focused and loving parents of their only child but that by the very nature of their professions, they are child-focussed. I have reservations.

8. I have had no more advantage than reading a voluminous file and hearing the submissions of the parties’ counsel but decisions had to be made in respect of two discrete issues. I made the relevant orders at the time and indicated I would give written reasons warning the parties that it would contain background and my understanding of the wider dispute.

9. The first issue related to an order or undertaking which the husband sought of the wife. He wanted an undertaking to the court, or for the court to make an order, that she be restrained from hitting the child. Counsel for the husband said that his client would be content with it being given or made with the wife denying that there was any necessity for it. In other words, a concession would be made with a denial of its foundation. To understand this issue, unfortunately, context is necessary but the end result was that I declined to make such an order or request such an undertaking. The basis of that refusal is that insofar as an order was concerned, the power would lie in s 68B of the Family Law Act. With a denial by the wife of anything having occurred as asserted by the husband, I could not be satisfied on the balance of probabilities that the child needed any such protection. In addition, there is the vexed question of the court ordering someone to not break the law. In my view, whilst the parties could have agreed on such an approach, they did not here. There is no plausible evidence upon which such an order could then be made. I turn below to what the husband said was evidence and express my concern about its admissibility and weight.

10. The parties lived together between 2009 and 2014. Their separation occurred in December 2014. The child had been born 4 months before.

11. On 8 January 2015, the husband filed an application in the Federal Circuit Court seeking parenting orders. Leaving aside the precise wording, he wanted the Court to order:

    ·Equal shared parental responsibility;

    ·That the child live with the wife;

    ·That he spend time with the child for 1 hour each day.

12. On 21 January 2015, the wife filed a response. She sought orders that:

    ·The parties have equal shared parental responsibility;

    ·the child live with her;

    ·the child spend such time with the husband as may be agreed following a family report. (my emphasis)

13. On the assumption that family reports prepared for the court (as distinct from the parents attending upon professionals in the community) to give advice at hearings (and in this Court, usually the final hearing) the wife’s position may be presumed to be:

    (a)As the child’s primary carer, she did not know what was an appropriate amount of time for the husband to spend with his child; and

    (b)if the “family report” she anticipated took a year or so to be provided, did that mean that the child was to have no contact in the meantime?

14. The court is entitled to more than that from its practitioners.

15. Another significant observation that can be made about these applications for substantive orders or remedies, concerns equal shared parental responsibility.

16. Leaving aside the legal position up to the time parental responsibility is altered by a court, the focus of the legal position can be seen in s 65DAC of the Family Law Act. It provides:

    This section applies if, under a parenting order:

    (a)2 or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2)      The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3)      The order is taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)to make a genuine effort to come to a joint decision about that issue.

    (4)      To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

17. One might question from the immediate dispute how it could possibly be said that the parents could meet the requirements of s 65DAC. But the parents have been to court about the child 12 times since January 2015. Orders for equal shared parental responsibility were repetitively made on 22 January 2015, 1 October 2015 and 22 March 2016. As I shall mention below, there are pending intervention order applications against each other where each seeks that the other not deal with the other.

18. The focus of the proceedings begun in 2015 concerned the husband’s time with the child. Notwithstanding the wife’s application as I have described it, orders were made on 22 January 2015 for the child to spend time with the husband three days per week for an hour at a time. The child was then 5 months old so that time makes sense.

19. Curiously, the parties consented to non-denigration injunctions in those same orders (order [7]).

20. The time issue continued to be the focus of the proceedings in 2015 with it being marginally increased on 29 April 2015 but the parties agreed that the husband’s time would ultimately be supervised by a private agency over whom the court had no control and whose services were paid for by the husband. If the intention was to give the child a security blanket away from the wife with her father who had been seeing her three days per week, what role was this agency to fulfil? Was this paid stranger (however qualified) to be the security blanket or was there some protective issue involved?

21. By June 2015, the parties were back in court and the husband’s time was again marginally extended but now it was to be “facilitated” by members of the husband’s family or if they were unavailable, the paid agency. How could the extended family have known the child any better than the husband? If it was a protective issue, what was it? All of these arrangements were compromises between the parents and the court must have been satisfied that it did not need to interfere.

22. In October 2015, further time extensions occurred. This time, it was extended to Wednesdays 11-5, Thursdays 8-5 and Saturdays 9-6 but the changeovers were to occur at a police station. Presumably, because the child was then so young, she would not have understood the police were there for some protective purpose.

23. In March 2016, after the parties had been to experts, Judge Small in the Federal Circuit Court pronounced orders and gave reasons for her judgment. Her Honour ordered the child to live with her mother and for the husband to have day time contact three days per week. In and amongst the orders, it can be seen that time was to commence overnight around August 2016. Interestingly, notwithstanding the parties’ respective professions and their equal shared parental responsibility order, the judge had to make orders including that the child travel with such things as soft toys.

24. There is another significance in that hearing. In the present applications to which I turn below, the husband set out his concerns about the wife based on statements attributed to psychiatrist Dr B. Dr B provided reports prior to the hearing before Judge Small. Her Honour ultimately transferred the proceedings to this Court but in making the orders which have not been the subject of any appeal, her Honour set out why she was making the orders she did. My concern about the use by the husband of the views of Dr B is that they must surely be seen in the context of the findings and orders of Judge Small.

25. Her Honour said:

    [5]This is an extremely high conflict parenting matter…..

    Both parties are well educated professionals who, one imagines, in any other circumstance, would be able to listen to the other side of a debate and to put his or her case in a thoughtful and measured manner.

    [6]However when it comes to their parenting relationship, while each has compromised his or her position from that presented to the Court at the beginning of this hearing, it is clear that that relationship is conflictual, toxic, and highly volatile. There are allegations of coercive and controlling behaviour, of physical assault, of verbal abuse and other forms of family violence as defined by the Family Law Act 1975.

    [7]At this hearing the disputes were quite narrow

    [22]All the evidence in this matter shows that the child has a close and loving relationship with both her parents, that both love her dearly and want only what is best for her. The only concern the court has about those relationships is the deep-seated and seemingly intractable conflict between the parents, conflict which the child has been exposed to and involved in ever since the parties separated. (my emphasis)

    [24]In his evidence on Friday, Mr V said that there was “nothing remarkable” about the child’s present time with her father, that time being up to 9 hours on 2 to 3 days per week, which is in line with the recommendations made in his reports. It was his view that despite the high conflict between her parents, the child was a delightful child who was meeting all of her developmental milestones.

    [33]In reading the affidavit material of the parties and the various expert reports provided on all sides, one cannot help but wonder whether the child’s parents see her not as person in her own right, with her own personality, likes and dislikes, interests and talents, but as a prized object to be won or lost in competition with the other parent. That is not an attitude likely to produce an outcome that is in the best interests of this child. (my emphasis)

26. I have emphasised [22] and [33] to indicate that her Honour had read the “expert” reports yet nothing in those reasons indicates any concern about mental health such as would affect parenting orders. Her Honour made equal shared parental responsibility orders (again).

27. In my view, use of reports preceding findings such as here is misleading and inappropriate. It should not have happened.

28. Having been transferred to this Court, the proceedings they came before the Senior Registrar. Here, the parties consented to orders about the husband’s time including overnight time. Literally, there were pages of orders where the parties already had equal shared parental responsibility. Why was that necessary? Presumably because they could not agree on anything and needed some guide book of orders to consult about what each could do with the child. Nothing could be more obvious having regard to the circumstances that led to the current interlocutory dispute.

29. There was a contravention application brought by the husband in February 2017. Bennett J adjourned what was a festering issue but it resolved by agreement before Johns J in April 2017. At that hearing, the husband’s time was again altered by an increase.

30. On 12 April 2017, Macmillan J, in her Honour’s role as Case Management Judge, set the final hearing for November 2017. It was apparently made clear to her Honour that the husband was now seeking that the child live with him. Her Honour directed the filing of proper applications and affidavits but the parties did not comply. Their explanation was that they were going to a mediation; yet the history I have just traversed must raise questions of the point of all that.

31. In August 2017, the husband had the child according to the orders. He said he retained her in his care because of a “concerning disclosure” she made on 16 August. He then referred to parts of reports I have already expressed concern about including a reference to something said by psychologist Mr V. Nothing in the reasons of Judge Small indicates that her Honour saw that any view Mr V had of the wife would affect her capacity as a parent or, more importantly, her role as the primary person responsible for the day to day management of the child.

32. The husband then set out his experience of the wife but that too was all covered by Judge Small who had described the parties’ relationship(s) as “toxic”. The perception from the husband’s affidavit must be that the wife was the problem. I do not consider the presentation of that sort of evidence on an interlocutory application helpful.

33. The husband said that the child disclosed “my mummy hits me” a statement made “in the context of a calm conversation….where she stated that she found things ‘confusing’ ”. No doubt some expert will look at whether this language has a particular meaning for a three year old.

34. The child was then said to say “I don’t want my mummy to push me”. An appointment had been arranged with a professional who had been described as a psychologist but as the husband agreed, is an infant mental health practitioner. Ms C is a social worker from what I can discern and she has had involvement with the family for a year. She was described as the wife’s counsellor of choice but I am not sure that description adequately fits.

35. The husband said his opinion was that the mother’s behaviour (which he had obviously accepted to be true notwithstanding his only source of information was his three year old child) “demonstrates a serious lack of insight, and an inability to alter her pattern of behaviour”. That opinion apparently formed the basis of the husband’s view set out in paragraph [4](b) above.

36. The husband attached to his affidavit what was described as a report from Ms C. It was not clear why that was not in an affidavit and it was addressed “To Whom It May Concern”, so I am not entirely sure whether Ms C knew it was to be used in some way as evidence. No-one objected to its use but to the extent that it was an opinion, the question of the witness’s expertise should have been considered. She said she told the mother that she was writing a report that would be “available to both legal teams”. I caution the parties about that approach if it is to be taken as evidence.

37. Ms C said that she thought “the allegation” of the child had to be taken seriously but from her report, the only reference by the child to the mother hitting her was made in response to a very direct and leading question. Contrary to what the husband said about this calm conversation, Ms C found the child “very unsettled, chaotic in her play and unable to engage directly in what she is purported to have said that morning”.

38. I remain concerned as to what Ms C was meaning and whether the letter or report was intended somehow as evidence as distinct from advice to the parties. In my view, the court should be very cautious about that sort of statement when the findings of Judge Small saw no such problem.

39. Obviously, things change very quickly in a very young child’s life and this was a discrete incident but it seems that although the parties were unaware, the Court had the benefit of a report from the Department Of Health and Human Services who had received a complaint from a person they properly declined to name. That becomes important here as an objective analysis of what had occurred.

40. In his affidavit, the husband said [17] after seeing Ms C, he went to the Children’s Hospital Emergency Department and “saw [Dr D]”. The husband provided Dr D’s discharge summary. However, as is apparent from the report the parties did not have, Dr D told the DHHS that the child made “no disclosures” and had no injuries (and) no concerns were noted about the child or her well-being.” One might not draw that inference from the husband’s view of Dr D’s position.

1. The Department had no concerns about the child but they did report there were problems of conflict as is now well-known; they certainly indicated no intention to intervene and significantly no suggestion was made of removing the court’s jurisdiction by issuing a protection application.

2. The report was read out to the parties and they may do well to search the file after this event.

3. Having canvassed these various issues with the parties, counsel for the husband indicated that agreement had been reached about the child being returned to the wife. In my view that was a very sensible concession on the basis of the evidence placed before the Court.

4. There is obviously much more of this case than I have set out above but the Court has to focus on the best interests of the child in what unashamedly seems to be a conflict that shows no sign of abating despite all of the things that have been going on.

5. The trial judge in this case will no doubt look at s 60CC(3)(h) and consider whether final orders can be made. This is a case where predicting the child’s readiness for a change of residence or extended time might be problematic but at the same time, guessing when she will be ready for what time with either parent, is equally difficult. It may be that the Court has to stop the dispute by setting limited time with one parent for a number of years.

6. The second issue related to the time that the child should spend with the father this weekend under a discrete order because of what has occurred over the last few days. There is some irony here. Having regard to the context of the first issue, it will be understood that I found the husband’s position perplexing. He said that notwithstanding he had retained the child for “protective reasons” (which on the basis of the evidence, in my view was questionable), he agreed the child should be returned to the wife for an hour that night so that he could then catch a plane with his parents to Tasmania later that same evening for the weekend. That had been an arrangement which had not only been organised in advance but had been the subject of an order made only on 18 July 2017.

7. It does not take much imagination to understand that the child is three years old. The evidence (if that is what it is) of Ms C, suggests the child is confused. To thus give her back to the wife for 1 hour and then whisk her off to a plane makes little sense if the focus is on her best interests. I indicated I would not allow that to occur.

8. By the same token, the wife must have had sufficient confidence in the husband’s capacity (again bearing in mind the background history) to agree to a weekend sojourn such as this. The argument from the wife’s perspective was that she (as distinct from the child) was “fretting” for her child but I have no understanding other than the observation of Ms C that the child was confused.

9. In my view, the focus really had to be on giving the child an opportunity to settle back at least overnight with the wife and then spend a little less of the weekend with the husband.

10. The husband’s initial submission was that this was all booked. I detected a suggestion (albeit not from the husband or his counsel) that the child was looking forward to going to Tasmania. She is three years old. Common sense dictates she would have little understanding of what she was embarking upon.

11. There could be no argument about the cost and inconvenience of changing the husband’s flights to Tasmania. There should be no cost to the husband for the child. Insofar as he might lose on the flight, I remarked (and there was no demur from his counsel) that his legal fees for the day were significantly higher than the cost of another airfare to Tasmania.

12. It is important to observe that the jurisdiction had been activated by the wife’s application for a recovery order. The exercise of that power was ultimately unnecessary but the power in s 65D did become important when the final dispute arose. In respect of that, I consider it was proper to make an alteration to the extant weekend order because:

    ·Although there was a specific provision for the weekend for the child to be with the husband, she had not seen her mother for some days. There was no precedent for that and hence I do not know her experience or the impact upon her. In my view, the court should not guess in circumstances where the history I have set out shows a slow build-up approach;

    ·The husband saw this as a specific time for he and his family in Tasmania but to the child at 3 years of age, it would be difficult to imagine that she understood the adult concept of a family weekend;

    ·the child was described as confused and there may be any number of explanations for that but what must be seen from the reasons of Judge Small was that the expert advised the court of the need for stability. As such, the child needed to settle back into her home with her mother so that the gap between being again with her primary parent was reduced;

    ·Counsel for the husband conceded that the wife should have compensation time and although I do not consider it relevant here, his proposal of extra time in the week ahead could not in my view overcome the problem of the gap between time being in the mother’s care.

13. The Court is obliged when making a parenting order to look to its power. It lies in s 65D of the Act. That is, the court should only make an order if it is proper. In deciding what order to make, of the kinds mentioned in s 64B, the court must apply the provisions of s 60CA and seek out the best interests of the child. That exercise is governed by the provisions of s 60CC and when one contemplates all of those factors, I could not make findings on any, or very few, of them (see the approach in Goode & Goode (2006) FLC 93-286).

14. The court is also obliged to apply s 61DA but that was not the way the parties presented the matter on this limited issue so in my view, applying the presumption here would not assist. To the extent that it was somehow necessary to do so, I would apply s 61DA(3) and find that it is not appropriate here because of the conflictual evidence as well as its paucity.

15. In addition, the best interests of the child here could not be determined by reference to s 60CC of the Act. The best evidence about her needs is already somewhat vague in the reasons of Judge Small because that was a year ago. It is time for the parties to start to concentrate on parenting the child properly. It is common ground that this is a high conflict family even though they have the qualifications and professions I earlier mentioned. There is evidence that this is an internecine war in the fact that the Magistrates Court of Victoria has apparently set aside 2 days later this year for contested intervention orders. The parties could consent to injunctive orders in this court to avoid that.

16. The court history also indicates the nature of the conflict because orders were previously made that the child be handed over outside police stations. It was not much comfort that counsel for the husband said that no longer happened because the parties were now using the contact centre. In other words, they still need their behaviour controlled to avoid the child being embroiled in the conflict.

17. When I asked where the child was to be exhanged over the 18 hours involved in the weekend immediately after the court hearing, there was still no agreement. I ordered it be the forecourt of the court building in the evening but the wife insisted it be at the contact centre in the handover to the husband on the following morning.

18. The trial judge will no doubt have a careful look at not just the evidence and any reports that the parties rely upon from experts but also the need to finish this dispute with the entrenched positions the parties have. With the child being so young and the husband now apparently seeking that she live with him, it is not clear what role he sees the wife will have. Because of that, I insisted that the parties comply with the anticipated timetable of Macmillan J with some extended times. I was told that the parties had chosen not to file their affidavits and amended applications because they were going off to mediation. With the history set out above, it might have been better to have made their positions and evidence very clear first. On what I have seen, mediation of this dispute is hardly likely to be successful unless there is a serious mindset change.

19. I reiterate the orders that commence these reasons.

I certify that the preceding Fifty Nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 August 2017.

Associate: 

Date:  22 August 2017