Bourreau & Ivers

Case [2024] FedCFamC1F 807

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bourreau & Ivers [2024] FedCFamC1F 807

File number(s): NCC 1607 of 2022
Judgment of: SMITH J
Date of judgment: 23 October 2024
Catchwords: FAMILY LAW – CHILDREN – review of decision by Senior Judicial Registrar – ex tempore - father seeks supervised communication transitioning to unsupervised communication – father seeks professionally supervised time –mother and Independent Children’s Lawyer oppose the father’s application –father has an acquired brain injury – evidence of father’s difficulty regulating his emotions and behaviours – evidence of family violence – risk of psychological harm from presentation – possibility of no time no communication order at trial – where the court must balance the risks and benefits – where the court must consider the views of the children – where the risks can be adequately ameliorated through supervision – benefit of information for final hearing - orders for supervised communication and time
Legislation: Family Law Act 1975 (Cth) Pts I, VII, ss 4AB, 60CA, 60CC, 61B, 61C, 64B, 65AA, 65D
Cases cited:

B & B (1993) FLC 92-357; [1993] FamCA 143

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Deiter v Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

M v M (1988) 166 CLR 69; [1988] HCA 68

Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Re Andrew (1996) FLC 92-692; [1996] FamCA 43

SS v AH [2010] FamCAFC 13

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 1 First Instance
Number of paragraphs: 89
Date of hearing: 23 October 2024
Place: Newcastle
Solicitor-Advocate for the Applicant: Ms Single
Solicitor for the Applicant: Single Law
Solicitor-Advocate for the Respondent: Mr Clack
Solicitor for the Respondent: Family Law Service For Aboriginal Communities - Legal Aid NSW
Counsel for the Independent Children's Lawyer: Ms Adams-Nash
Solicitor for the Independent Children's Lawyer: Ashby Family Solicitors

ORDERS

NCC 1607 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BOURREAU

Applicant
AND:

MR IVERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 OCTOBER 2024

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Communication with the father

1.Ms X (born 2006), Y (born 2011) and Z (born 2015) (“the children”) shall communicate with MR IVERS (born 1975) (“the father”) via telephone or facetime every second Wednesday from 4.00 pm until 4.30 pm.

2.These calls are only to be made in the presence of Ms C.

3.To facilitate the telephone or facetime communication, the father shall purchase a device for the children, and be liable for the associated costs, and arrange for it to be delivered to the solicitor for MS BOURREAU (born 1983) (“the mother”).

4.The father shall call the children at the commencement of the scheduled time and the mother shall do all acts and things to facilitate the father’s communication with the children. 

5.The mother is to hold this device at…

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Bourreau & Ivers [2024] FedCFamC1F 807
Case
[2024] FedCFamC1F 807
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms. Bourreau applied for final orders in relation to her children with Mr. Ivers. The court was required to determine the appropriate terms for communication and time between the father and the children. The central legal issue was whether the risks associated with the father's history of family violence, emotional regulation difficulties, and potential psychological harm to the children could be adequately managed through supervision, thereby permitting supervised communication and time. The court considered the evidence of family violence, the father's acquired brain injury, and the children's need for stability and information for the final hearing.

The court balanced the potential risks of psychological harm against the benefits of maintaining a relationship between the father and the children. Given the evidence of the father's efforts to address his issues through various courses and support services, the court found that the risks could be sufficiently mitigated by supervision. The court noted that while there was a risk of a no-time, no-communication order at the final hearing, interim orders were necessary to protect the children's position until the final hearing could be held. The court also took into account the children's views, as expressed in the Child Impact Report and the Family Report.

The court concluded that supervised communication and time were appropriate, subject to strict conditions to ensure the children's safety and well-being. The orders included supervised telephone or FaceTime communication and supervised time with the father, with specific protocols to be followed to protect the children from potential harm. The mother was required to facilitate the communication and time, and the father was to bear the costs associated with supervision.

Pending further orders, the court ordered that the children would communicate with the father via telephone or FaceTime under supervision every second Wednesday and would spend time with him under supervision every fourth Saturday. The father was required to purchase a device for the children and arrange for its delivery to the mother. The mother was to hold the device at all other times, and the father was not to contact the device or the children outside the scheduled communication times. The contact centre was to terminate any session deemed harmful to the children and report such incidents to the Independent Children's Lawyer and the court.

Orders

Orders of the court

NCC 1607 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BOURREAU

Applicant

AND:

MR IVERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 OCTOBER 2024

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

Communication with the father

1. Ms X (born 2006), Y (born 2011) and Z (born 2015) (“the children”) shall communicate with MR IVERS (born 1975) (“the father”) via telephone or facetime every second Wednesday from 4.00 pm until 4.30 pm.

2. These calls are only to be made in the presence of Ms C.

3. To facilitate the telephone or facetime communication, the father shall purchase a device for the children, and be liable for the associated costs, and arrange for it to be delivered to the solicitor for MS BOURREAU (born 1983) (“the mother”).

4. The father shall call the children at the commencement of the scheduled time and the mother shall do all acts and things to facilitate the father’s communication with the children.

5. The mother is to hold this device at all other times and the father is not to contact this device at any other time or otherwise seek to contact either child.

6. Ms C is to file an up-to-date undertaking to the Court satisfactory to the Independent Children’s Lawyer (“ICL”) stating that:

(a) Her duty is to the Court to protect the children from psychological or emotional harm; and;

(b) She will immediately terminate the contact if the father is highly emotionally unregulated, makes inappropriate comments, or otherwise says or does anything which might expose the children to psychological or emotional harm; and

(c) She will provide to the ICL and the Court frank summaries of these conversations, including where these summaries are adverse to the father’s interests in these proceedings.

7. These calls will commence 30 October 2024, subject to compliance with Order 6 herein.

8. There shall be no communication between the father and the children or either child other than in accordance with these Orders.

Time with the father

9. The children’s time with the father is to be supervised by B Organisation (herein referred to as “the contact centre”).

10. The children shall spend time with the father for four (4) hours, if possible, from 12.00 pm to 4.00 pm or at such times as nominated by the contact centre, every fourth Saturday.

11. To facilitate the children spending time with the father, each party must:

(a) Contact B Organisation within seven (7) days to arrange an appointment for assessment for suitability;

(b) Attend the assessment made by the contact centre;

(c) Comply with any appointment made by the contact centre;

(d) Comply with all reasonable rules of the contact centre; and

(e) Comply with all reasonable requests or directions of the staff of the contact centre.

12. If the parties are accepted following intake procedure, then the children are to spend time with the father on the first available Saturday, and every fourth Saturday thereafter.

13. The time is to be implemented by the mother delivering the children to the contact centre at the start of the father’s time with the children and collecting the children from the same place at the end of the father’s time.

14. The parties are not to interact if possible, and otherwise only to the extent necessary.

15. The mother shall pay $20.00 of the fees nominated by the contact centre for the provision of each visit and the father shall pay the remaining sum.

16. The father will reimburse the mother any public transport costs associated with the mother transporting the children to and from the contact centre, including of the mother attending the centre for intake, within 7 days of being notified of that sum.

17. No other family member or person, other than a paid NDIS support worker including Ms C, is permitted to attend the contact centre with the father, nor to be present for the father’s time with the children.

18. A copy of these orders may be provided to the Contact Centre.

19. There shall be no contact or time between the father and the children or either child other than in accordance with these Orders.

Liberty to approach

20. The Independent Children’s Lawyer has liberty to approach the Court on short notice if any issues arise.

THE COURT FURTHER ORDERS THAT:

21. The mention listed for Monday, 16 December 2024 be vacated.

22. The matter be listed for mention on Friday, 7 February 2025 at 10.00 am by Microsoft Teams

Conciliation Conference

23. The parties and any lawyers on the record shall attend a Conciliation Conference with Judicial Registrar Furner at 9.00am AEDT on Thursday, 19 December 2024.

24. The Independent Children’s Lawyer is excused from attending the Conference.

25. The parties and any lawyers on the record shall follow any directions from the Judicial Registrar convening the Conference in relation to attendance in person, by Microsoft Teams or by telephone.

26. Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012, the Applicant and Respondent must each pay one half of the Conciliation Conference fee by 4.00pm on 5 December 2024.

27. Not later than 4.00pm on 5 December 2024, each party must:

(a) Ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;

(b) Ensure that any private Expert Report that is relevant to the proceedings has been filed;

(c) Provide to the Court by email to …@... and to the other party a single collated bundle of documents comprising:

(i) A completed Confidential Outline of Case (Dispute Resolution) in the approved form, including:

1. A list of documents relied upon;

2. A Balance sheet;

3. An outline of the issues relevant to property adjustment;

4. A brief chronology relevant to the issues in dispute;

5. An outline of the issues relevant to maintenance;

(ii) A detailed minute of Orders Sought in an unprotected word document;

(iii) A copy of any previous or current family violence orders;

(iv) A copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);

(v) Particulars of any financial resource;

(vi) Any valuation or market appraisal of any real estate or other asset the value of which is in dispute;

(vii) Statements for, and where applicable, valuations of any superannuation interest;

(viii) Written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

28. Not later than 4.00 pm on 5 December 2024, the Applicant is to file a collaboratively prepared single Balance Sheet setting out all assets, liabilities, superannuation and financial resources which the parties assert are relevant to the determination of this matter and the document shall have footnotes which explain the differences between the parties in relation to any disputed item.

29. Leave is granted to each party to re-list the matter for a procedural hearing before the docket Justice should either party consider there is an impediment to genuine settlement negotiations occurring or continuing or should it become known to either party that the Conciliation Conference may not proceed effectively for any reason.

30. In the event either party fails to comply with the above directions, the docket Justice or the Registrar before whom the Conciliation Conference is listed before may vacate the Conciliation Conference and a further Conference may not be allocated until the Judicial Registrar is satisfied that the matter is ready.

THE COURT NOTES THAT:

A. If the father does or says anything that the contact centre considers is, or may be, emotionally or psychologically damaging to the children, the contact centre is asked to terminate the session and to notify the ICL forthwith.

B. Any outstanding disclosure, valuation/s and procedural fairness must be attended prior to the Conciliation Conference and costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.

C. The Conciliation Conference is a Court event for the purposes of rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The parties and their lawyers must comply strictly with their obligations under that rule. Prior to the Family Dispute Resolution Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:

(a) the total costs and disbursements incurred by the party in the proceeding to date;

(b) an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and

(c) an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

D. The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the Conference.

E. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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

G. 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.

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

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties also have three adult children: Ms E, born in 2002, Ms F, born in 2003, and Ms X, born in 2006. Ms X was a subject to these proceedings until earlier this year. Ms F, I note, has participated in interviews and has given evidence through the Family Report process. BACKGROUND The short background is that the parties commenced a relationship in 1999, married in 2004, and separated on a final basis on about 18 March 2022. The mother left the home and relocated from Town D to Region G of New South Wales in the context, she says, of significant family violence. These proceeding commenced on 7 June 2022, when the mother filed an application for final orders. An Independent Children's Lawyer (“ICL”) was appointed for the children on 3 August 2022. The parties reached consent interim orders on 30 November 2022, for the children to live with the mother and for the children to spend time with the father, each alternate Saturday and Sunday for four hours from 12.00 pm to 4.00 pm, with changeovers in Region G. It was further agreed that Ms X would spend time with the father in accordance with her wishes. There were also orders made for communication between the children and the father, for the parents to undergo random drug, urine screens, and CDT testing at the request of the ICL, as well as a variety of mutual restraints. From about November 2022 until about 6 May 2023, the children spent time with the father in accordance with the interim consent orders. The Child Impact Report (“CIR”) was completed by the Court Child Expert, Ms H on 4 May 2023 and released on 6 May 2023. That report contained highly concerning material and raised significant issues of risk in both households. Specifically, in relation to the father, (included at [13]-[15]), was the children's consistent histories of witnessing the father's family violence, including the history that Ms F, then an adult, but still interviewed, confirming the mother's allegations of long-standing serious family violence at [16], and the father's strong denials at [17]. A significant feature of the CIR was the unreliability of the father's evidence, noting that much of what was said was not confirmed by the children, but his denials about mental health issues, alcohol and drug use, were shown by the subpoena material to be incorrect. The CIR also raised significant issues of educational neglect, that the children were regularly hungry and lacked adequate food; and evidence, also established in the Report, that Ms F and Ms X, to some extent, were effectively parenting the children at [19]-[20]. There were significant issues raised of risk of sexual harm to the children. For example, Ms E was sexually assaulted as retribution by people known to the father, and those people were subsequently convicted. There was an incident due to the father associating with drug dealers. There were issues that the father's sister, Ms J, who he proposes to call as a witness in his case at the final hearing, was alleged by Ms F to have tried to groom her whilst underaged and Ms J was said by the children to have engaged in family violence against them, all without the father taking any steps to protect the children.

Evidence

Evidence Before The Court

He also proposes for the children to spend supervised time with him from 12.00 noon to 4.00 pm, every third Saturday in Region G, where the mother now lives, supervised by Ms C, or if unavailable, one of her employees, or a subsidised centre. He sets out proposals for how that will work, including the intake. He says the parties should pay half the fees nominated by the contact centre for provision of service. During today’s hearing, the father indicated through his legal representative, that he thinks the cost for supervision is about $40 through B Organisation, who have availability. Until the supervision centre is available, he also wants time to be supervised by Ms C or one of her employees, subject to her providing an undertaking. THE EVIDENCE I will come to the critical evidence, which is mainly in the Family Report, in a moment. I have already indicated what is in the CIR. The father's affidavit, filed 26 September 2024, details the courses he has completed since his affidavit filed in July 2024. That includes the Triple P parenting course. He is seeking and obtaining a national police certificate and working with children checks. He has continued to engage a behavioural support practitioner, who completed a functional assessment dated 16 September 2024, which is relied on to show his improved functional parenting capacity. He says he has continued to engage with his general practitioners, occupational therapists, and an alcohol and drug worker. RISKS OF SUPERVISED COMMUNICATION OR TIME The major opposition by the ICL and the mother, which the father implicitly accepts, is that there is a case of unacceptable risk available. That is why he seeks, in respect of time with the children, supervised time. There is no doubt that the material disclosed in the Family Report does provide a case, if accepted in its entirety, of unacceptable risk. And I think it is reasonable to say that there is the prospect, as the ICL says, that a justice of this court, whether it is me or someone else who hears the matter at final hearing, might come to the conclusion that this is a no time, no communication case, given the significant evidence of family violence and also, significant evidence of the father’s difficulty with emotional regulation. Nevertheless, as I raised with the ICL, that is not unusual. The reason we have interim orders is to protect the position until we have a final trial. If there is supervision at a supervision centre, it seems unlikely there is physical risk. The father is not in that category of people where their behaviours are such that even in the presence of third parties I would assess physical risk as significant. The major opposition by the ICL, supported by the mother, to the recommencement of communication and time were said to be two things. Firstly, that the father's behaviours, as noted in the CIR and the Family Report, give rise to a risk of psychological harm. I think that is a reasonable argument. Secondly, the concern that the recommencement of communication and time could be harmful, given that there is a risk there will be a no time order. That, unfortunately, is always an incident of the issue of time continuing until you can get to a final hearing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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