Bolger & Pecoras

[2021] FCCA 233

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bolger & Pecoras [2021] FCCA 233

File numbers:	MLC 10574 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	27 January 2021
Catchwords:	FAMILY LAW – Interim parenting ­ time the child spends with the mother – expert report – interim orders made.
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 65BAA
Cases cited:	Goode & Goode [2006] FLC ¶93-286
Number of paragraphs:	15
Date of hearing:	27 January 2021
Place:	Melbourne
Counsel for the Applicant:	Mr J Eley
Solicitor for the Applicant:	Mitchell Family Law
Counsel for the Respondent:	Ms E Heggie
Solicitor for the Respondent:	Blackwood Family Lawyers

ORDERS

MLC 10574 of 2020

BETWEEN:

MR BOLGER

Applicant

AND:

MS PECORAS

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	27 JANUARY 2021

Amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001

THE COURT ORDERS THAT:

1.Paragraphs 1 to 9 (inclusive) of the Final Orders made in the Federal Magistrates Court of Australia on 6 January 2009 (Orders) and paragraphs 1 to 4 (inclusive) of the Interim Orders made 9 November 2020 be discharged.

2.The parties have equal shared parental responsibility for the child X born in 2005 ("X").

3.X live with the mother.

4.X spend time with the father during school terms as follows:

(a)From the commencement of Term 1 until the conclusion of Term 1 in 2021, each alternate week from the conclusion of school (or 3:30pm if a non-school day) on Friday to the commencement of school on Tuesday (or 9am if a non-school day); and

(b)From the commencement of Term 2 in 2021, each alternate week from the conclusion of school (or 3:30pm if a non-school day) on Friday to the commencement of school on Wednesday (or 9am if a non-school day); and

(c)Any other times as agreed between the parties in writing (including by text or by email).

5.The arrangements in orders 3 and 4 hereof be suspended during the Victorian gazetted school holidays and during the said school holidays X live with each party for half of all school holidays at such times as may be agreed between the parties in writing (including by text or email) but failing agreement:

(a)during the term 1, 2 and 3 school holidays:

(i)with the father from the conclusion of the last day of the school term to 5.00pm on the middle Saturday of the school holiday period; and

(ii)with the mother from 5.00pm on the middle Saturday of the school holiday period to the start of school on the first day of term.

(b)during the long summer holidays:

(i)with the father for the first half in odd numbered years and the second half in even numbered years; and

(ii)with the mother for the first second half in even numbered years and the second first half in odd numbered years

with the arrangements in order 4 hereof to recommence in the new school term as if they had been running in the background without interruption.

6.The arrangements in orders 3, 4 and 5 hereof be suspended during the following times for special occasions, pursuant to which X shall spend time with the parties as follows unless otherwise agreed in writing by the parties (including by email or text):

(a)with the mother on Mother's Day from 9am to 6pm; and

(b)with the father on Father's Day from 9am to 6pm.

7.The parties be at liberty to communicate with the X by telephone, Facetime, text, email and/or Skype at any reasonable time.

8.In the event that changeover does not take place at school, the father collect X from the mother's home at the commencement of the time X spends with him, and the mother collect X from the father's home at the conclusion of the time X spends with the father.

9.In accordance with the recommendations of Ms B in her family report dated 13 January 2021:

(a)The mother forthwith enrol in and complete a Tuning into Teens course at C Counsellors, D Counsellors, E Counsellors or any other not-for-profit organisation that runs such a course and provide evidence of completion to the father.

(b)The Mother forthwith engage with a parenting consultant to revisit her authoritarian and rigid approach to parenting and provide details of the consultant she attends to the Father.

(c)That the Mother and X forthwith engage and attend up a Psychologist together for parent adolescent sessions and follow all recommendations of such Psychologist.

(d)That parties ensure that X continues to engage with her current treating Psychologist, Ms F, to assist her in her development, or X attend upon such other Psychologist as agreed between the parties in writing.

(e)The father forthwith attend upon a Psychologist to help him manage new relationships with his daughters. 

10.The parties be at liberty to provide copies of these orders and the Family Report dated 13 January 2021 to any mental health professional engaged to assist either parent, X, and/or Ms G.

11.The parties keep each other informed via SMS as soon as reasonably practicable of:

(a)any illness, accident, hospitalisation or medical condition in relation to X when X is in that parent's care;

(b)details of any medication prescribed for X;

(c)details of all medical and allied health practitioners treating X; and

(d)details of any medical or allied health appointments in relation to X.

12.The parties be at liberty to:

(a)communicate directly with any of X's medical, dental or health care providers;

(b)attend at X's school at any time or attend any school event;

(c)communicate with X's school and receive all information and documents ordinarily provided to parents (including but not limited to school photographs, newsletters and reports), including use of any "app" or computer program used by the school; and

(d)attend any of X's extracurricular activities.

13.To give effect to order 12 hereof, either party be at liberty to provide a copy of these orders to X's school and/or any of her medical, dental or healthcare providers.

14.The parties advise the other of any change to their current email and/or mobile telephone numbers within 24 hours of the change.

15.Each of the parties, and through their servants and agents, be and is hereby restrained from:

(a)denigrating the other parent or their family in the presence or hearing of X or the parties' adult daughter, MS G (born in 2003) ("Ms G");

(b)questioning X and/or Ms G about the other parent;

(c)discussing any issues in dispute in these proceedings, including child support arrangements, school fee payments or financial arrangements between the parties, in the presence or hearing of X and/or Ms G; and

(d)providing to, facilitating access to, or divulging to X and/or Ms G the contents of any Court documents and any other documents or correspondence filed by or exchanged between the parties in these proceedings, including child support arrangements, school fee payments or financial arrangements between the parties.

Appointment of Independent Children's Lawyer

16.Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the child X born in 2005 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid or otherwise the Independent Children's Lawyer do file a Notice of Address for Service;

(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children's Lawyer copies of all relevant documents; and

(c)The Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Child's Representative' as published at and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

Trial Directions

17.The proceedings be adjourned to 13 October 2021 at 10.00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.

18.The matter be listed for a compliance mention by telephone on 29 September 2021 at 9.30am.

19.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

20.The Applicant file and serve any Amended Application, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.

21.The Respondent file and serve any Amended Response, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.

22.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 7 days prior to the Final Hearing.

23.Each of the parties be at liberty to file a short affidavit in reply by no later than 7 days prior to Final Hearing.

24.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings, provided that written notice is given to the other party at the same time as filing any updating affidavit provided above.

25.Each party file and serve a case outline by no later than 3 days prior to trial and provide a copy in Word format to [email protected] 

26.Pursuant to s.62B and s.65D of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.

AND THE COURT NOTES THAT:

A.Appointment of the Independent Children's Lawyer was raised by the Court not by the parties.

B.While these orders are not made by consent, save for Orders 4(a) and (b) there was no dispute as to the substance of the other orders.

C.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.

D.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.

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

F.If s102NA 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 Bolger & Pecoras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. My determination is that the change should happen sooner rather than later.  I might be hearing the matter later on, so I do not propose to go into all of the matters or in a lot of detail, but the parties are entitled to and they need to, know why I am making these orders.  I might add, there is substance in the careful submissions of Ms Heggie and I am assisted by them, but it is clear that this hearing today is in the context of the tragic circumstances of what appears to be a breakdown in the relationship between the child Ms G and her Mother.  I am not able to determine at this interim hearing how much of that is the responsibility of the Father, (as the Mother would have it with her parental alienation case) and how much that is the responsibility of the Mother and her lack of insight into her parenting dynamic (as the Father's case puts it).  I am just unable to determine that and I am then unable to determine if I could reach a decision about that - and I may or may not be able to - what do I do with that information on an interim hearing anyway.

   RELEVANT LAW

2. I should indicate that this is an interim hearing and I am endeavouring to follow the principles set out in Goode & Goode [2006] FLC ¶93-286 and I do take all of the matters set out in Goode & Goode into account and, in particular, paragraph [82].  I take into account all of the provisions of the Family Law Act 1975 (Cth) (‘the Act’) from section 60CA, which is the best interests requirement. I take into account section 65BAA up to the end of Division 6 of Part VII of the Act and I take into account the parties' affidavits.

   MATTERS FOR CONSIDERATION

3. The matters though that are significant to me on this interim hearing are as follows.  Firstly, I take on board and do not dismiss, the very recent report of Ms B who is a highly experienced practitioner and that has assisted the Court in many cases over many years.  At page 15 of 41, the Mother acknowledged that “she screams when she is upset”.  I also take into account that Ms G told the Mother (at page 18 of 41) that “she “knew where mum was coming from” and explained that much of the conflict with her mother was minor”.  The issue I have with that, is the reference at page 15 of 41 (of the report) of the Mother's behaviour when she is upset.  Ms G's comments include that her concern was that she felt that her Mother had stepped out of the rational zone and into the regimented, strict, controlling approach and that when Ms G was not compliant she experienced her Mother being angry and became verbally abusive towards her.  I also take into account the observations that Ms G made at page 20 of 41, in that:

   She sees the arguments between them (Mr Bolger and her mother) as raw emotion, screaming and often her mother “follows him swearing and screaming at him” i.e., the stepfather.  At this time, she and X withdraw to their rooms.

4. I am concerned about X being exposed to what is family violence in the Mother's home because of that dynamic and there are other references to that.  Then we have X's observations herself.  Now, I take on board the extent to which the Mother's case is Ms G has become aligned with her Father by the dynamic of the Father's long-term campaign to belittle her, denigrate her, etcetera.  But I do take on board that X has reported at page 20 of 41, that she “saw her mother as “quite scary”, very controlling and explosive in her parenting approach.”

5. I might add, I am not terribly troubled by the reports about the Mother being the strict authoritarian and highly focused on education.  That is a matter of style and that is not a matter that I would be critical of the Mother at all.  In fact, that goes to her credit that she is so motivated to promote education that she, effectively, is prepared to engage in conflict with the children for their own good so that they maximise their own abilities.  The Mother is highly educated herself and the Father is himself highly qualified.  So that is not something I am critical of at this stage.  I am not ruling it out, ultimately.

6. What does concern me is that X spoke of the Mother as “a ticking time bomb”, especially when things do not go her way and she also describes other behaviour along those lines at pages 21 of 41 and her descriptions of how close she is to Ms G.  I am not going to go into all the matters that I take into account, but that are the primary matters.  I do take into account all of the matters in the report and I am alert to the suspicion that the Mother would have when Ms G goes to live with her Father and gets a new car and how that can look and after all Ms G is only 18 and is subject to influence. 

7. However, for all those reasons (and I note that X has observed that she needs smaller doses with her Mother in the context of needing more time with her Father), my reading of the report as a whole is that those changes should happen sooner rather than later.  This is not trial by family expert.  But the buck stops with me.  I have to make the decision.  But I am very much assisted by the recommendations that Ms B makes and that is notwithstanding that on a final hearing there may turn out to be real substance in the Mother's criticism of the Father.

8. However, in my view, Ms B's recommendations are already taking a cautious approach. Ultimately, in the orders sought by the Father and the Mother, both of them are also taking a cautious approach.

9. In terms of the other issue, that because of the Mother's concern of parental alienation she feels that the form of the existing 2009 orders should be kept, partly to protect her and the children against what she would see as that manipulative or even predatory behaviour of the Father.

10. If she is right about the alienation/alignment issue, I can understand why she would feel that way.  However, in my view, my experience has demonstrated to me that there are real practical issues where we have Court orders regulating something as important as where the children live spread over a number of orders.  I am not ruling against the Mother in any way (the invalidity of those feelings), but simply that as a matter of practicality from my point of view one set of orders is to be preferred in cases of conflict. 

11. The issue of whether the family has got to this situation by Father's manipulation and alignment is a live issue at final hearing as well as what do I do about in any event.  So for that reason I will adopt the orders of the Father, save that order number 10 of the Mother's orders which relates to the provision of the Family Court will be in place of the Father's draft of number 10.  That is not a criticism of anyone, just a practicality and noting the amendment to number 6 so that it is 9 am to 6 pm in (a) and (b) to line up with the 2009 orders. 

12. The other matter that I take into account is the circumstance of the siblings spending more time together and that is a very significant matter to me.

    CONCLUSION

13. They are my reasons.  I would urge the parents, as it is quite clear to me both of the parties have already began the process of looking at their own behaviour and the contribution of that behaviour to this problem that the family is in, to really examine that.  I am grateful to the Mother and the Father for being guided by the expert and their own lawyers as to what they should do in this case.  Do not stop now.  Please bear in mind that however much I read about X and Ms G, I will never know them like the two of you do.  I am the default option that decides what to do if the two of you cannot.  It does not mean that I am better able to decide.  I am not the best option.  I am the default option.  So please continue to work hard at yourselves sorting out what is best for these children. 

14. One of the sections of the Act that I must take into account in determining the best interests of the children is the responsibility to the attitudes of parenthood. That responsibility to parenthood includes grappling with the children's best interests when it is really difficult, not just when it is easy and one of the things about life is it is really difficult when parents don’t agree. Because the two parents here have been separated for so long and with such high degree of conflict in regard to these two children, it may be that each of them are not realising enough that even if they still had a harmonious relationship together, there would be real and substantial disagreements about what to do with these two children.

1. Those areas of disagreement between parents about how best to raise two children are not solely the province of those who are separated.  They apply to all parents, particularly with teenagers, and I would urge you, please, to both look seriously at your own contribution to the place that you are in.  I would say, particularly, to the Father but also to the Mother as well if we are one day at Ms G's or Ms G is at a family wedding or an event, whether it is a graduation of a doctorate or a master's or a wedding, but a significant event where ordinarily there will be families of all the participants, and someone will say to Ms G, “So there is your dad.  Is your mum here?” and Ms G says, “I had a big blow up with my mum when I was 17 and 18 and I have haven't had a relationship since.”  She will be pretty cross with both her parents that the best that both of them could do together was that she did not have a relationship with her other parent whatever the faults and strengths of each of them may be.  So please look carefully at trying to get that together.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       11 February 2021