Blaine and Rodelgo (No.2)

[2017] FCCA 1672

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLAINE & RODELGO (No.2) [2017] FCCA 1672

Catchwords:
FAMILY LAW – Children – application for parenting orders – where Court has made a finding of unacceptable risk to children – whether final or interim orders should be made.

Legislation:

Family Law Act 1975, ss.69ZN, 69ZO, 69ZQ, 69ZR

Cases cited:

Blaine & Rodelgo [2017] FCCA 1641

Rice & Asplund (1979) FLC 90-725

Applicant: MS BLAINE

Respondent: MR RODELGO

File Number: LEC 271 of 2015

Judgment of: Judge Jarrett

Hearing date: By written submissions

Date of Last Submission: 9 April 2017

Delivered at: Brisbane

Delivered on: 20 July 2017

REPRESENTATION

Counsel for the Applicant: Ms Harding

Solicitors for the Applicant: O’Reilly & Sochacki

The Respondent appeared in person

Counsel for the Independent Children’s Lawyer: Mr Theobald

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Lismore Family Law

ORDERS

1. All previous orders are discharged.

2. The mother have sole parental responsibility for the children, [X] born … 2011 and [Y] born … 2013 (“the children”).

3. The mother, in exercising her sole parental responsibility advise the father by email of the following:

   (a)any proposed decision relating to the long term care and welfare of the children, including but not limited to;

   (b)proposed decisions about which schools the children shall attend; and

   (c)proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children.

4. The mother ensure that such notification is given to the father in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency.

5. The mother consider any views expressed by the father in respect of such proposed decisions.

6. Each parent advise the other party and keep the other party advised of their current email address and advised the other party of any changes to that address within seven (7) days of such change occurring.

7. Each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child or children and do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

8. The children live with the mother.

9. The children spend time with their father as agreed between the parties and failing agreement, no less than a two (2) hour period fortnightly commencing in line with the regime of time the children spend with the father when these orders are made.

10. For the purposes of order (9) herein, unless the parties otherwise agree in writing, such time shall occur:

    (a)immediately following these orders and until subparagraph (b) of this order is implemented, at the Town C Children’s Contact Centre;

    (b)at the Relationships Australia Region K – Children’s Contact Service based at Town D State School, Town D, Queensland.

11. For the purposes of order (10)(b) hereof, both parties must forthwith:

    (a)contact the Contact Centre within seven (7) days and request an appointment for assessment for suitability for supervised contact;

    (b)attend for assessment at the times and places appointed by the Contact Centre;

    (c)attend with any appointments made by the Contact Centre for supervised contact;

    (d)ensure that the children attend any appointments made by the Contact Centre for supervised contact;

    (e)comply with all reasonable rules of the Contact Centre; and

    (f)comply with all reasonable requests or directions of the staff of the Contact Centre.

12. If after the assessment intake procedure the parties are accepted by the Contact Centre as suitable for the Contact Centre to facilitate supervised contact the father is to have contact with the children at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.  The costs of such contact will be met by the parties equally.

13. The mother deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.

14. The father may communicate with the children by cards, letters and gifts addressed to the children care of the mother, through her solicitor or as the mother may otherwise advise the father by email at Christmas, Easter and on the children’s birthdays.

15. The mother shall be responsible for ensuring that having regard to the maturity of the child, no inappropriate written material and gifts from the father be given to the children and ensure that if the gift is appropriate that it will be passed onto the children.

16. Should the children express a wish to write to the father, the mother will do all things necessary to assist the children in doing so.

17. The except as is provided for in these orders father is restrained and an injunction issue restraining him from:

    (a)directly or indirectly contacting the mother by any means whatsoever;

    (b)approaching the mother or the children;

    (c)using a third party to contact or approach the mother or the children; and

    (d)being within one hundred (100) metres of the mother’s residence, her place of employment, the children’s school or the venue for any of their extracurricular activities.

18. The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Blaine & Rodelgo (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

LEC 271 of 2015

MS BLAINE

Applicant

And

MR RODELGO

Respondent

REASONS FOR JUDGMENT

1. On 22 February, 2017 I made orders that dismissed the father’s application in a case that was filed on 2 June, 2016 and I made orders for the parties to deliver written submissions as to the further disposition of the father’s principal application and the mother’s response: Blaine & Rodelgo [2017] FCCA 1641. I made those orders consequent upon a hearing that was focused upon a determination of whether there was an unacceptable risk of harm to the children the subject of the proceedings, if they were to have unsupervised time with their father. For reasons that I delivered on 22 February, 2017 I concluded that there was an unacceptable risk of harm. I said:

   79.    I am satisfied on the basis of the findings of fact that I have made that there is an unacceptable risk of harm to these children in the way in which counsel for the Independent Children’s Lawyer and counsel for the mother have expressed.  That is to say there is an unacceptable risk of physical harm to these children should they have unsupervised time with their father and there is an unacceptable risk of emotional harm to these children should they have unsupervised time with their father.  They have been protected from those risks so far by the imposition of supervised time.  It may be that in the fullness of time, and with the appropriate assistance, supervision will become unnecessary, that is assistance for the father, but that time is not now.

   80.    Accordingly, it is appropriate to dismiss the father’s application in a case to the extent that it is necessary to do so.  I invite all of the parties now to make written submissions to me as to whether:

   a)  it is to appropriate to make orders on a final basis or whether a further hearing in respect of any further issues is necessary, and

   b)  if final orders are now appropriate then what final orders ought to be made. 

2. All parties have now delivered written submissions dealing with the further disposition of the proceedings.  The submissions reveal that the terms of the orders to be made, whether they be final or interim, are also in dispute.  Principally, however, the dispute concerns:

   a)whether the children’s time with the father ought continue to be supervised; and

   b)if supervised, where that time should occur.

3. The Independent Children’s Lawyer proposes that there should be orders discharging all previous orders, that the mother have sole parental responsibility for the children and that the children live with her.  The Independent Children’s Lawyer proposes that the children should spend time with their father for a two hour period fortnightly or at such other times as might be accommodated by the Town C Children’s Contact Centre.  She proposes that should the father fail to attend to see the children on two consecutive contact visits then the children’s time with the father will be suspended and the mother will not be obligated to attend.  The orders sought by the Independent Children’s Lawyer provide for communication in other ways between the children and the father.

4. The mother agrees with the orders proposed by the Independent Children’s Lawyer.  Both the Independent Children’s Lawyer and the mother contend that the orders so proposed should be made on a final basis.

5. The father does not agree to the orders proposed by the Independent Children’s Lawyer or the mother.  He contends that final orders ought not be made and that interim orders only should be made pending a further final hearing.  If supervised contact orders are made, he argues that the supervised time should take place at a contact centre located more equidistant from the residences of each of the parents, rather than the contact centre presently used by the parties located in Town C.

The Submissions

1. These proceedings concern two children [X], born in … 2011 and [Y], born in … 2013.  Presently they live with their mother and spend supervised time with their father pursuant to interim orders made by the Court on 22 October, 2015.

2. The Independent Children’s Lawyer submits that it is appropriate to bring these proceedings to an end by making final orders. She points out that the findings made on 22 February, 2017 that the children are at an unacceptable risk of physical and emotional harm should they have unsupervised time with the father dispose of the only significant issue in the case. She, by her counsel, submits that the matter might be dealt with by making final orders in chambers following the receipt of submissions by each of the parties pursuant to s.69ZO of the Family Law Act 1975 (Cth).

3. The Independent Children’s Lawyer points out that those findings were informed by evidence from each of the parties, the children’s grandmother Ms L and the two witnesses who gave evidence on behalf of the father, Ms G and Ms J.  The Court also had the benefit of a family report prepared by Ms B dated 7 December, 2015.  There was a psychiatric assessment of the father in evidence undertaken by Dr E in May, 2016.

4. The Independent Children’s Lawyer submits that if there is to be a subsequent final hearing, the issue to be determined will be the same as the issue that has been determined at the hearing that occurred on 20 and 21 February, 2017.  She submits that having made a finding about the issue of unacceptable risk, it is in the best interests of the children that final orders are now made.  A further hearing would serve no useful purpose. 

5. The Independent Children’s Lawyer submits that the principles found in s.69ZN support final orders being made now after the principal finding that the children are at an unacceptable risk if they have unsupervised time with their father has been determined. The Independent Children’s Lawyer points out that the principles set out in s.69ZN demand that result. Those principles are:

   69ZN  Principles for conducting child‑related proceedings

   Application of the principles

   (1)The court must give effect to the principles in this section:

   (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

   (b)in making other decisions about the conduct of child‑related proceedings.

   Failure to do so does not invalidate the proceedings or any order made in them.

   (2)Regard is to be had to the principles in interpreting this Division.

   Principle 1

   (3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   Principle 2

   (4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

   (5)The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

   (b)the parties to the proceedings against family violence.

   Principle 4

   (6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

   Principle 5

   (7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

6. The Independent Children’s Lawyer emphasises the general duty of the Court outlined in s.69ZQ to give effect to these principles.

7. The Independent Children’s Lawyer submits that the competing applications should be finalised on the basis that the children’s contact with the father should be supervised on an indefinite basis.  The Independent Children’s Lawyer recognises that such orders might limit a future application by the father to vary the orders, but having regard to the evidence that was led at the trial and the Court’s conclusions that the father has not availed himself to date of the opportunity to undertake treatment to address the issues identified by both Ms B and Dr E, the Court has no option but to order supervised time.

8. The Independent Children’s Lawyer points out that the father has had ample opportunity to attend to the recommendations made by Dr E in her report.  Relevantly, those recommendations were:

   1. If any issue of safety for the children is identified, then such measures should be put in place to ensure the children’s safety.

   2. That both parents respect the children’s relationship with the other parent and refrain from criticising or denigrating the other parent, or acting or influencing the children to be fearful.  The parents will need to trust in the decisions of the court in regard to the children’s safety.

   3. That Mr Rodelgo continue counselling with his psychologist.  Suggested issues for inclusion include: management of depression and anxiety, anger management, reactions to conflict and loss, and continuing to resolve his anger with Ms Blaine such that he can interact with her in a respectful way, avoid being provoked (should that occur or he perceive that as her intention), and can support the children’s relationship with their mother.

   4. If there is deterioration in Mr Rodelgo’s mood or functioning, referral to a psychiatrist is recommended for assessment and management, including assessment of the advisability of medication.  That Mr Rodelgo comply with the recommendations of the psychiatrist if this should occur.

   5. That Mr Rodelgo engages with parenting courses that provide information about childhood development and assist him to develop an authoritative parenting style, if not already completed.  Information about the effects of exposure to aggression would also be useful.

9. They were detailed recommendations addressed at counselling and the management of the father’s depression, anxiety, anger management, reactions to conflict and loss and attempts to resolve his anger towards the mother such that he can interact with her in a respectful way, avoid being provoked and provide support for the children’s relationship with their mother.

10. The Independent Children’s Lawyer points out that the evidence at the trial revealed that the father has not addressed those issues or taken any steps to do so.  Indeed he seemed uninterested in addressing them because he did not accept that the issues reflected in them were real.

11. As to the secondary issue concerning the location of the supervised time between the father and the children, it is relevant to record that the mother lives in northern New South Wales, in or near Town A.  The father lives in Brisbane.  Travel to the Town C Contact Centre, where time has been occurring under the present interim orders, is more onerous for the father than for the mother and the children in terms of travelling time.  It also costs him more to undertake that travel.  He argues that if there is to be supervised time, it should occur at a contact centre in Town C so as to ease the travel burden on him.

12. The Independent Children’s Lawyer contends that the children’s time ought to continue at the Town C Children’s Contact Centre.  She argues that the evidence reveals that the children are comfortable at that centre and have developed relationships with those people supervising the time with their father at the centre.  As the Independent Children’s Lawyer points out there is evidence that the children enjoy spending time with their father there.  Moreover the evidence demonstrates that the contact centre has developed a rapport with the father and is working with him and providing education and skills to him to prioritise the children and focus on them.  The Independent Children’s Lawyer submits that it would not benefit the children or the father to change the service provider.  With some force the Independent Children’s Lawyer submits that it would not benefit the children or the father to change the service provider because a new service provider would have no insight into the history or knowledge of this family, the court processes to date and the children’s specific needs.  Changing the contact service provider is not reasonably practicable and would be detrimental to the children. 

13. The mother submits that having regard to the findings that were made on 22 February, 2017 it is now appropriate to make final orders and a further hearing is unnecessary.  The mother points out that during the course of the two day hearing on 20 and 21 February, 2017 there were significant concerns raised in the evidence and accepted by the Court regarding the father’s behaviour towards the children that was noted in the Town C Contact Centre material produced to the Court by use of a subpoena.  The mother submits that as a “natural consequence” of the finding that there is an unacceptable risk of harm to the children spending unsupervised time with the father, it is now appropriate for the necessary orders to be made on a final basis that will ensure the ongoing safety of the children. 

14. The mother submits that the outstanding applications should be dealt with in the absence of any further hearing especially given that the father’s interim application for unsupervised time has been dismissed.  She submits that the balance of the orders sought by the father on a final basis is inappropriate following the finding of the existence of an unacceptable risk of harm to the children.  She submits that to provide further hearing time for the matter would be a “misuse of the court’s time and resources, particularly in circumstances where the father has failed to make any progress in relation to the recommendations put forward by Dr E in relation to further counselling”. 

15. The mother submits that having regard to the father’s evidence that he thought that further counselling was not helpful for him and thereby the father demonstrating that he will not take necessary steps to help his own cause, the Court should not be called upon to give any further consideration to any orders sought by the father.

16. The mother in her written submissions points out the unacceptability of long term supervised contact orders.  She highlights the imposition that such orders place on contact service providers, which are generally seen as providing services of a short term nature, the imposition on the mother of meeting such orders and the imposition on the children.  Consequently, she seeks an order in addition to those sought by the Independent Children’s Lawyer in the following terms:

    That in the event that the Town C Interrelate Contact Centre is unable to continue to facilitate the father’s time with the children, that at that time, the father’s time with the children shall cease.

1. The father submits that the orders proposed by the Independent Children’s Lawyer and agreed to by the mother should not be made.  He submits that it is not appropriate for final orders to be made because at the hearing on 22 February “the counsel relied heavily on evidence presented to the court outdated by more than 3 years and the family report outdated by more than a year”.  The father submits that due to the age of the children final orders “at this stage will hurt the children emotionally if contact is to cease with the respondent”.  The father points out in his written submissions that the regime of time between the children and him proposed by the Independent Children’s Lawyer’s orders is unlikely to present an arrangement which will be conducive to any sort of meaningful relationship between the children and him.  The father argues that what is in fact occurring in this case is the implementation of a plan by the mother to remove him from the children’s lives altogether.  He says that plan is consistent with what the mother herself told a witness who gave evidence before me some time ago.  The father proposes that the children be recovered back to Queensland so that they live within a 30 kilometre radius of his residence and that they spend week about between he and the mother.  In his written submissions, the father also points out that he has grave concerns for the care of the children in the mother’s household.

Consideration

1. Section 69ZR of the Family Law Act expressly authorises the making of final orders following the determination of any specific issues that the Court might identify and determine. Here, having identified the significant issue that existed between the parties concerning questions of unacceptable risk, the parties were given the opportunity to provide whatever evidence they wished to in relation to those issues and the Court has made findings in respect of it. It is open to the Court, although not mandatory, to make final orders consequent upon those findings.

2. The finding of an unacceptable risk of harm in the father’s care mandates, in my view, that orders be put in place that take those risks into account and minimises them to the extent that orders are able to do so.  The obvious form of order is that the children’s time with him be supervised in one form or another.  Neither party, nor the Independent Children’s Lawyer, suggested any alternatives.

3. The risks identified in my earlier judgment are significant.  In my view, the only way to manage those risks is for the time that the children spend with the father to be supervised.  However, long term supervised contact orders between children and a parent are generally seen as inappropriate.  Also, for the reasons submitted by the mother, long term supervision orders are generally speaking impracticable.

4. The alternative to a long term supervision order that might be seen as inappropriate or impracticable is for there to be no face-to-face time between the children and the father.  However, in this particular case having regard to the evidence of Ms B that the children have a good relationship with the father and that they enjoy spending time with him, albeit in a supervised environment, it seems to me that to make no order for face-to-face time would be even less in the best interests of these children.  An alternative – an order for telephone communication or some other form of electronic communication only, would be inappropriate because that which needs to be supervised (at least in part) is the way in which the father interacts with the children – the things that he says to them.  There is less likelihood of the father’s communications with the children being properly monitored if they happened outside of the supervised setting.

5. One of the curiosities of the case is the impression that the father gives that he is well motivated to advance the children’s time with him so that it might be undertaken on an unsupervised basis.  Yet at the same time he has demonstrated an inability or unwillingness to engage with the recommendations of Dr E.  Given his commitment to his children it is likely that, given some time, he will reflect upon the recommendations of Dr E and he will act upon those recommendations.  Whether he does so is a matter entirely for him.  Given his reluctance so far to engage with some of the recommendations from Dr E, it is impossible to form a view about when and if the father might complete those recommendations.  I remain hopeful and optimistic that he will, but just when is impossible to say.

6. Bringing litigation about children to an end is always desirable.  Litigation places strain on the parties to that litigation and indirectly upon the children involved.  They are strains which generally have no positive impact on a parent’s ability to provide good adequate parenting to their children.  Accordingly, it is of no surprise that as a general proposition, the sooner proceedings concerning children can be completed the better off those children will be.

7. There are significant benefits in bringing the present proceedings to an end now.  If there is a further hearing sometime later this year it is likely, in my view, that one of two courses will eventuate.  The first is that the father leads no further evidence about the steps that he has taken to act upon the recommendations from Dr E.  In that event, and having regard to what has occurred in the hearing already and the father’s subsequent written submissions for the purposes of this determination, it is likely that he will simply reiterate the evidence that has already been presented to the Court and contest the findings that the Court has already made.  Those matters, of course, will not be able to be the subject of re-determination.  The alternative course is that the father will present evidence that he has taken steps to put in place the recommendations made by Dr E and that he has perhaps completed them.  That is to say, he would present further evidence which not only acknowledges the findings made by the Court in February, 2017 but which attempts to deal with the question of unacceptable risk that has been found by the Court.

8. It will be appreciated that having regard to the findings that have already been made, the only realistic way forward for the father to advance his claims to unsupervised time will be to present further evidence to the Court demonstrating that he has acted upon and perhaps completed the recommendations of Dr E.  He might also present further evidence, perhaps from Dr E, about the effect of those actions by him upon the issues identified by Dr E.  Whether the presentation of that evidence happens in the context of a further hearing in the present proceedings or whether the father presents that evidence in the context of a fresh application by him is not to the point.  The point is that he will have to present that further evidence to advance his case for unsupervised time at all.

9. The father will, of course, be confronted with the rule in Rice & Asplund (1979) FLC 90-725. But the presentation of fresh evidence by him dealing with the matters to which I have just referred will, no doubt, overcome the requirements of Rice & Asplund for him to demonstrate that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the children.

10. Thus, a determination of the present matter resolves into a competition between the benefits to the children of having these proceedings completed now and the father perhaps bringing fresh proceedings at some time in the future when he is in a position to do so, or continuing on foot the present proceedings with all that will impose upon each of the parents with the prospect that when the matter is listed for final hearing later in this year, or perhaps next year, no different result will ensue.

11. Having regard to the best interests of these children, in my view the former course is more appropriate rather than the latter.  Final orders ought to be made now disposing of all outstanding applications.  If it is the case that the father is in a position to re-agitate the matter because he has addressed the matters identified by Dr E and is in a position to demonstrate to the Court those things, then a further application by him for the children’s time with him to become unsupervised may well succeed, but having regard to the father’s evidence at the hearing before me in February of this year it is difficult to see how that will happen in the short term.

12. Having regard to the evidence of Ms B about the relationship between the children and the father, in my view it is important that the children continue to have the opportunity to maintain their relationship with their father.  That will have to occur at a contact centre or at some other supervised way as agreed between the parties.  I am not hopeful that the parties will reach agreement about any other form of supervision other than by way of a professional supervised contact centre.  Accordingly the orders ought to provide for that as the primary position.

13. I am conscience of the submissions made by the Independent Children’s Lawyer about the desirability of continuing the children’s time with their father at the Town C Contact Centre.  However I am not satisfied that doing so is in their best interests.  It is more appropriate, in my view, for the children’s time to be supervised at a contact centre which would entail the children travelling less than they presently travel to get to Town C.  I appreciate that will be a change for the children and rapport will have to be built again, but the alternative – the father travelling to Town C for two hours of supervised time each fortnight – is, having regard to the evidence about the father’s ability to continue to comply with such an order before me at the February hearing, likely to breakdown leading to a deterioration in the relationship between the children and their father.

14. I do not intend to make an order as the mother suggests.  The relationship between these children and their father should not be left to the exigencies of a contact centre and its ability to provide the services that a Court has found the children require for their relationship with one of their parents to be maintained.

15. Finally, both the Independent Children’s Lawyer and the mother seek an order that the mother have sole parental responsibility for the children.  Given the acrimonious relationship between the parents in this case, their inability to communicate and the limited time regime between the children and the father, an order for sole parental responsibility is appropriate.

16. For all of those reasons, I think that it is appropriate to finalise the present proceedings by the making of final orders and I make the orders set out at the commencement of these reasons.   

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  20 July 2017