Bligh & Vello
[2024] FedCFamC1F 291
•3 May, 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bligh & Vello [2024] FedCFamC1F 291
File number(s): BRC 2766 of 2015 Judgment of: JARRETT J Date of judgment: 3 May, 2024 Catchwords: FAMILY LAW – PARENTING – Application for “reunification therapy” – Where applicant was previously found to pose an unacceptable risk to child – Where child’s mother has since passed away – Orders for reunification therapy inappropriate – Family report – Appointment of independent children’s lawyer – Applicant to pay costs of family report in first instance Legislation: Family Law Act 1975 (Cth) ss 62G, 68B Cases cited: Bligh & Trott [2023] FedCFamC1A 95
Trott & Bligh (No 2) [2023] FedCFamC1F 223
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 30 April 2024 Place: Brisbane Solicitor for the applicant: Litigant in person Solicitor for the respondent Evans Brandon Family Lawyers ORDERS
BRC 2766 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BLIGH
Applicant
AND: MR VELLO
First Respondent
MS CRISS
Second Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
3 MAY, 2024
THE COURT ORDERS THAT:
1.Pursuant to s 62G of the Family Law Act 1975 (Cth) Mr G is hereby appointed as a single expert for the purposes of preparing a family report.
2.The applicant shall meet the costs of the family report writer and the family report writer is under no obligation to commence interviews or any other work for the report until payment of his costs has been made by the applicant.
3.The parties shall comply in all respects with the requirements of the family report writer concerning but not limited to scheduling and attending interviews (whether electronically or in person), disclosure and information requests.
4.The child B born 2011 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the independent children’s lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
5.Consideration be given by Legal Aid Queensland to assign the same independent children’s lawyer who represented B earlier in these proceedings.
6.Otherwise the application in a proceeding filed on 7 February, 2024 and the response to an application in a proceeding filed on 24 April, 2024 be dismissed.
7.The application be adjourned to 9.30am AEST on 5 August, 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
8.The applicant be granted leave to appear by Microsoft Teams video link on 5 August, 2024 and for that purpose, the applicant shall email …@... on 4 August, 2024 and request to be provided with the details of Microsoft Teams video link.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
To understand the application now before me, some background is necessary. I have truncated much of it. A more fulsome explanation of the proceedings leading to the present application can be found in Trott & Bligh (No 2) [2023] FedCFamC1F 223 and Bligh & Trott [2023] FedCFamC1A 95.
On 8 February, 2023 Brasch J made orders, by consent and on a final basis, providing for the child the subject of these proceedings, B, to live with his mother and for her to have sole parental responsibility for him. Other orders were made dealing with the provision of a passport for B and his mother’s ability to remove him from the Commonwealth of Australia either permanently or temporarily. There was an order that once per year, the mother should cause an email to be sent to the father (the applicant in these proceedings) attaching a redacted copy of B’s end of semester school reports.
At the time of the trial before Brasch J, the applicant lived in the United Kingdom and B and his mother lived in Australia. Because of certain immigration issues confronting the applicant, it was unlikely that he would be able to return to Australia anytime soon.
The 8 February, 2023 orders, however, did not dispose of all outcomes that were in dispute between the applicant and B’s mother. On 10 February, 2023 after hearing submissions from B’s mother (by her counsel) on the outstanding issues, an order was made for the applicant to file and serve written submissions by a specified time and date dealing with the outcomes that remained in dispute. In particular, it was suggested that the applicant’s submissions should address:
(a)whether B spends supervised video time with the applicant;
(b)whether B’s mother had to advise the applicant of major long-term decisions;
(c)whether the applicant was restrained from making an application for an Australian travel document or other travel document; and
(d)whether B’s mother was permitted to change his name with the Registry of Births, Deaths and Marriages.
The outstanding issues were finalised by an order made on 3 April, 2023 that provided for B to spend no time with the applicant. In addition, injunctive relief was granted pursuant to s 68B of the Family Law Act 1975 (Cth) preventing the applicant from contacting B or B’s mother or from approaching within 200 metres of various places that they might attend from time to time. B’s mother was authorised by the order to change B’s first name and surname with the relevant authority. Reasons for judgment were delivered in respect of those orders (see Trott & Bligh (No 2) [2023] FedCFamC1F 223).
The applicant appealed those orders but soon after the appeal was commenced a judicial registrar made an order that he provide security for the mother’s costs of the appeal in a certain sum. The appeal was stayed pending the provision of the ordered security and in the event that the security was not provided by 4 July, 2023, the appeal was to stand dismissed. The applicant sought review of those orders by a judge, but his review application was unsuccessful (see Bligh & Trott [2023] FedCFamC1A 95). The applicant did not provide the ordered security and the appeal consequently stands dismissed.
The present proceedings were commenced on 19 October, 2023 when the applicant filed an initiating application seeking orders that B live with him, that he have sole parental responsibility for B and that B be permitted to live with him outside of the Commonwealth of Australia. He sought an order that B spend no time with his mother. According to the affidavit filed with it, the basis for the applicant’s fresh application was that the mother had withheld critical evidence from Brasch J in the earlier proceedings. Specifically, the applicant asserted that B’s mother was suffering from a terminal illness of the time of the last trial but did not disclose it to anyone.
By her response filed on 1 November, 2023 (in the form of an initiating application) B’s mother joined the present respondents to the proceedings, Mr Vello (the mother’s then de facto partner) and Ms Criss (B’s half-sister by a different father). She sought orders that she, Mr Vello and Ms Criss all have equal shared parental responsibility for B, that B live with the three of them and “upon the passing of [B’s mother], this order continues in favour of [Mr Vello] and [Ms Criss]”. Other consequential orders were sought including an extension of the injunction ordered pursuant to s 68B of the Family Law Act earlier in the year so as to cover Mr Vello and Ms Criss.
In her supporting affidavit filed on 1 November, 2023 (but sworn on 26 October, 2023) B’s mother swore that soon after the finalisation of the appeal arising from the orders made on 3 April, 2023 she commenced experiencing certain symptoms which were subsequently identified as connected with an illness. Further investigations revealed that the illness was far more widespread than first appeared. She deposed that her prognosis was poor, treatment was unlikely and she was terminally ill.
B’s mother passed away in late 2023.
The fresh proceedings came before Brasch J on 10 November, 2023. In addition to the applicant’s initiating application, in which he sought interim relief, there was also the respondents’ application for interim orders contained within their response and an application in a proceeding filed by the respondents seeking certain procedural orders to regularise their response to the application (which had been filed in the form of an initiating application on 1 November, 2023)
On 10 November, 2023 Brash J made orders which in effect, confirmed the orders made by her in February and April, 2023 but which accounted for B’s mother’s passing and the fact that he was being cared for by the first and second respondents.
The proceeding found its way so as to be before me on 17 April, 2024. By that time, there were two fresh applications in a proceeding extant, one filed by the applicant and the other filed by the first and second respondents.
By their application, the first and second respondents sought the summary dismissal of the applicant’s initiating application. However, they have subsequently abandoned that application. On 30 April, 2024 I was told by the solicitor appearing for the second and third respondents that they had discontinued their application although no notice of discontinuance appears in the court file.
In his application in a proceeding filed on 7 February, 2024 the applicant seeks an order for “reunification therapy” to take place between him and B as well as an order for the preparation of a family report by someone other than the family report writer who prepared the reports used in the earlier proceedings. It is this application, and the respondents’ response to it, that is now before me for determination. These are my reasons for the orders that I intend to make on that application and response.
Having regard to the initiating application and the response to it, the principal outcome in dispute concerns whether B should live with the applicant in the United Kingdom (with the applicant having sole parental responsibility for B) or whether B should continue to live in Australia with the first or perhaps the first and second respondents and continue to have no time or communication with the applicant as presently ordered.
The applicant’s argument recognises that B has not spent any time with him since he was recovered from the applicant’s possession in July, 2015. B was almost four years of age at that time. In 2024 he will be 13 years of age. The applicant therefore seeks an order for “reunification therapy” between him and B to be conducted with a person called Dr AR. There is evidence before me about the process that Dr AR generally adopts when conducting such therapy. The applicant further submits that once that therapy is complete, there ought to be a family report prepared by somebody other than the person who prepared the reports for the previous proceedings. Mr G, a consultant social worker prepared the reports for the earlier proceedings. There are two of them, one filed on 28 July, 2015 and the other on 26 August, 2022.
The respondents oppose an order for reunification therapy, at least at this point in time, on the basis that it is premature. They argue that until there is evidence before the court suggesting that it would be in B’s best interests for there to be a relationship between he and his father, engaging in reunification therapy is inappropriate and presumptive. The respondents advance that submission having regard to the orders that were made on 10 February, 2023 (with the applicant’s consent), the subsequent orders made on 3 April, 2023 and the reasons for them. They argue that the judge determining the earlier proceedings made findings that any contact between B and the applicant would expose him to an unacceptable risk of harm. Indeed, she did just that in Trott & Bligh (No 2) [2023] FedCFamC1F 223 at [139]–[140]:
[139]The ICL’s counsel submitted, on the particulars of the criminal charges alone, I would find the father an unacceptable risk to the child. I agree. Yet there are extra layers to the father’s conduct which, taken as a whole, support that finding. Thus, on the combination of the father’s criminal convictions and the particulars thereto, engaging surveillance on the child (and therefore the mother) (Exhibits 8 and 13), inspecting the child for bruises, and the father’s unbridled views about the mother, the balance squarely remains on protecting the child from harm. Those harms for the child are primarily emotional and psychological harms derived from a combination of: the father taking the child from child care contrary to orders, and therefore taking the child from the child’s residential parent; inspecting the child for bruises and being preoccupied with his lawyer when the child ought have been having beneficial time with the father; and, the relentless undermining of the child’s mother, which saw mother and child moving homes, and the child moving childcare facilities. All of those factors speak to the father’s lack of appropriate boundaries, inability to contain himself when pursuing a point, and his self‑defeating conduct.
[140]The father’s dogged pursuit of the mother had no regard, or any real and considered regard to the impact that may have upon her and thus her parenting of the child. Whilst the mother may have done a sterling job in shielding the child from the impacts on her and her views of the father (as is the evidence of [Mr G]), what I say here is directed at the father and his conduct. His conduct cannot be excused by saying the child is doing all right. That speaks more to the mother’s capacities and strengths in the very difficult circumstances created by the father, than to exonerating or ignoring the father’s conduct because the child is seemingly unaffected. I accept that it is inappropriate to order reunification therapy at this point because no determination can be made that, notwithstanding the change of circumstances brought by [B’s] mother’s death, the establishment of a relationship between [B] and the applicant is in [B’s] best interests. The applicant argued that [B] was entitled to a relationship with him as one of his parents. I accept that submission as far as it goes, but as the reasons in support of the earlier orders makes clear, that entitlement is always subject to the necessity to protect a child from an unacceptable risk of harm. It was determined in April, 2023 that even supervised video contact between [B] and the applicant would expose [B] to an unacceptable risk of harm from the applicant.
…
[216]Both the mother and ICL submitted that I would find: the father is an unacceptable risk of harm; I could not be satisfied that he could contain himself; and, if the father said something inappropriate on a supervised video call the “Jeannie would be out of the bottle”, to use a phrase said by the mother’s counsel in submissions. I agree. Supervision would be reactive; that is, for example, ending a call after the father said something inappropriate.
…
[231]I now turn to whether supervision would mitigate the unacceptable risk posed by the father. As found, I have no confidence that the father would be able to restrain himself or regulate his behaviour if communicating with the child or abide by directions from a supervisor. I have formed that view due to his criminal convictions (and more so, the particulars that were made out on the criminal standard of proof) which reveal words and actions of an anti-social nature directed at the mother and those within her realm. He has also proven himself unable to abide by Family Court and Magistrates Court orders when he took the child from childcare in contravention of the Temporary Protection Order and orders of this court. He considered it appropriate to inspect the child for bruises when on supervision. He has engaged a Private Investigator in the past and could do so again if the child gave him some hint to his whereabouts. Such is his disregard for law and order that he was found guilty of attempting to pervert the course of justice.
[232]I am also not prepared to place the child in the invidious position of hiding identifying factors from the father, if the father asked him but the mother or supervisor told him not to answer.
[233]The father’s very poor views of the mother remain palpable - they dripped from his 71 pages of submissions and rung true and clear when he was speaking for himself after his second s 102NA lawyers withdrew. I am not satisfied the father would be able to contain himself from sharing his views about the mother with the child.
[234]For all the reasons expressed, I am not satisfied that supervised calls will mitigate the unacceptable risk which the father poses to the child. For example, if the father has “wound himself up” (to quote him) and calls the mother a horrible name over the video, the child has heard it and the supervisor will be dealing with a “Jeannie out of the bottle” (to quote the mother’s counsel).
The conclusion that it will be necessary for there to be a report prepared pursuant to s 62G of the Family Law Act is inescapable in the circumstances of this case. The respondents’ argument seems to accept that is so and indeed they apply for such an order in their response to the application.
However, the applicant objects to that report being undertaken by Mr G. Whilst there is nothing in his written testimony that bears on this issue, in the course of his submissions the applicant said that there were “religious and personality differences” between he and Mr G. I do not know what that means. No challenge appears to have been made to Mr G’s impartiality before Brasch J. Given the extensive history enjoyed by this case and the extensive involvement already undertaken by Mr G, it seems to me entirely appropriate that Mr G be the family consultant for the purposes of preparation of the next report. Part of the applicant’s evidence before me is that he has undertaken training and education such that he no longer poses a risk to B. An expert who is able to make a “before and after” assessment such as Mr G is best placed to assist the court. I have considered making an order that a court child expert prepare the report, but any such person would lack the advantage I have identified as held by Mr G.
There is an issue about who should pay for the report. The applicant seeks an order that the parties share the fees of the single expert equally. The respondents seek an order that the applicant meet the costs of the single expert in the first instance and that the ultimate incidence of the costs be reserved to trial.
The applicant made no particular submissions in support of the order he sought other than to say that he is effectively impecunious. How then it might be that he can meet his one-half share of the relevant fees (as he proposes) was not explained.
In his affidavit filed on 1 November, 2023 the applicant swears that he is a full-time student currently completing tertiary studies. According to that affidavit he is to complete the degree in mid-2024 and formally graduate in late 2024. He swears that in order to undertake his studies he has obtained a tuition fee loan and maintenance loan for his living costs. He swears that he resides in a studio apartment on the University campus. He has his own car.
The applicant gives further details of his financial circumstances in an affidavit filed on the 18 December, 2023 (and repeated in his affidavit filed on 7 February, 2024). In those affidavits he confirms his status as a full-time student whilst at the same time working casually for which he receives an annual sum of about £3000. He swears that he is able to access £9000 per annum in student loans. He explains how he spends that money on his accommodation expenses, car expenses, books for his course reading list, electronic devices and daily living expenses. He does not suggest that he can save any of it and it must be the case that he has no surplus because he swears that he cannot afford to pay for his legal fees. He borrows funds to do so.
The respondents point to the following matters in support of their proposed order.
First, they make the point that the applicant has never contributed to the costs of the expert evidence before the court for the purposes of the last trial. They point out that B’s mother met the costs of the 2015 report, as provided for in the consent order made for its preparation. The applicant never contributed to those costs. Further, the Legal Aid Office (Qld) met the costs of the second family report prepared in 2022. The applicant did not contribute to those costs either, despite an order for him to do so. In his affidavits filed on 18 December, 2023 and 7 February, 2024 the applicant swears that he is “prepared to pay any outstanding costs orders made in favour of the Independent Children’s Lawyer from the previous proceedings.” However, he gives no evidence of any arrangement to do so and does not suggest how he might meet those costs.
In addition, the applicant was ordered to pay certain of B’s mother’s costs in an amount totalling about $7,700. Those costs remain unpaid. In his affidavit filed on 18 December, 2023 (and repeated in his February, 2024 affidavit) the applicant suggests that by reason of some agreement struck with B’s maternal grandmother, the applicant has somehow been able to discharge his debt to B’s mother for those costs. His evidence about that though (see paragraphs 15–23 of each affidavit) is both confused and confusing. At no point does he suggest that B’s maternal grandmother had any authority to discharge the debt owed by him to B’s mother or that he received any consent at all from B’s mother to the arrangements he describes in his affidavit.
Second, the respondents point out that the applicant did not provide the security for B’s mother’s costs of the appeal that he instituted pursuant to the order made by a judicial registrar (and confirmed on review). His failure to provide that security meant that his appeal against the orders pronounced on 3 April, 2023 was dismissed. The costs to which B’s mother was put responding to the appeal and the application were, presumably, met by her.
Whilst these matters suggest that the applicant is in fact impecunious, his suggestion that he is willing to pay the amounts due to the Legal Aid Office (Qld) means that rather than being truly impecunious, he is simply unwilling to pay any costs to further his litigation if that means that B’s mother (and now the respondents) might benefit from his payment. Given the applicant’s willingness to meet at least half of the costs of the expert he has some mechanism in place whereby he can secure the funds for that purpose although he does not swear to any.
Third, the respondents argue that the applicant should meet all of the costs of the expert’s report, at least in the first instance, because he is not providing any child support for B and they are providing the entirety of his financial support. When making his submissions in response to this issue, the applicant suggested that he had an agreement with B’s mother in respect of child support. Whilst there is no evidence before me one way or another about this, I strongly suspect that it is not the case at all given the nature of the relationship between the applicant and B’s mother as described in the reasons for judgment delivered on 3 April, 2023. In any event, whatever might have been the case while B’s mother was alive, she is no longer and the entire obligation to financially support B has, at present, fallen to the first respondent. When directed to the question of B’s current financial support, the applicant confirmed that he was not paying any child support for B.
The first respondent is employed full-time and he deposes (in his affidavit filed on 1 November, 2023) that his income is adequate to pay household bills, rental expenses and “keep the family’s current lifestyle”. There is no evidence about the second respondent’s income but given her age and the fact that she is studying and working, seemingly part-time, her income is not likely to be great.
Having regard to the matters submitted by the respondents, I am satisfied that it is appropriate to make an order that the applicant meet the costs of the single expert in the first instance and that the ultimate incidence of those costs be reserved to trial judge. Although the applicant’s evidence paints a picture of impecuniosity, his evidence also establishes that he has the wherewithal to borrow funds from friends and family to fund these proceedings and such was his confidence in being able to access that resource that he suggests that he would meet at least half of the relevant costs. In my judgment he should meet all of the costs at least in the first instance.
The orders should provide a mechanism whereby the single expert is not required to undertake any work until he has been put in funds by the applicant for the report. That order is necessary because the applicant is out of the jurisdiction and enforcement of any order for the payment of those costs may be difficult. In the event that a report is prepared but the applicant fails to pay the single expert’s costs, the only person out of pocket will be the single expert. That is not a position that should be allowed to develop.
At the conclusion of submissions, the solicitor appearing for the respondents suggested that it might be appropriate at this point in time for there to be an order appointing an independent children’s lawyer for B. In the previous proceedings finalised in April, 2024 there was an independent children’s lawyer. The solicitor for the respondent argues that it should be the same person if possible. I agree. Given the complexities of this case I think there is a distinct advantage in having the same independent children’s lawyer re-appointed if that is at all possible.
I was also pressed by the solicitor for the respondents to allocate a trial date for these proceedings. However, I do not intend to do so until such time as there has been a report prepared by Mr G and that report has been made available to the parties.
For the above reasons I make the orders set out at the commencement hereof.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 May 2024
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