Brogden & Brogden

Case [2022] FedCFamC1F 218

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Brogden & Brogden [2022] FedCFamC1F 218

File number(s): SYC 2521 of 2019
Judgment of: HARPER J
Date of judgment: 7 April 2022
Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where final orders had been made by consent in 2012 – Where the father began agitating for more time with the children soon after consent orders made - Mother has been primary carer since 2012 – Where orders were made by senior registrar suspending time with the father – Orders were confirmed on review – Children have not spent time with the father since April 2019 – Mother seeks sole parental responsibility and no contact – ICL supports order for sole parental responsibility and children to spend time with father in accordance with their wishes – Family violence – Finding made that father has perpetrated family violence – Where children fear the father – Finding that the father has subjected children to psychological abuse by causing psychological harm – Father previously found guilty of intimidation, although no conviction entered – Where father demonstrates obsessive and narcissistic personality traits – Father demonstrates inadequate insight into the extent to which his own behaviour has been unacceptable – Where father believes mother has forced children to express a false narrative about him – Where father’s next partner also makes allegations of family violence – Where father relied on evidence by two treating psychologists – Where both psychologists advised unsupervised contact was appropriate – Advice was given from the perspective of the father – Neither psychologists have the expertise to express an opinion on the question of supervision – Limited weight given to evidence given by father’s treating psychologists – Intractable conflict between the parents not conducive to order for equal shared parental responsibility – Order for sole parental responsibility to the mother – No dispute the children should continue to live with the mother – Although father’s domestic circumstances less complicated, risk to children continues – Risk that father may relapse into angry or abusive past behaviour – No order for time made – Children to spend time with the father in accordance with their wishes – Family therapy ordered.  
Legislation:

Family Law Act 1975 (Cth) Div 12A, Pt VII, ss 4, 4AB, 31, 60CA, 60CC, 61C, 61DA, 65D(1), 65DAA, 65DAB, 69H, 69ZT

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9, 25, 51, 149

Cases cited:

Alam & Sayid [2021] FamCA 564

Blaze & Grady (2015) 54 Fam LR 172; [2015] FamCA 1064

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Brogden & Brodgen [2019] FamCA 666

Brogden & Brogden [2021] FamCA 642

Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

Damiani & Damiani (No 2) [2009] FamCAFC 215

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

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

Hazeldell Ltd v Commonwealth (1924) 34…

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AGLC
Brogden & Brogden [2022] FedCFamC1F 218
Case
[2022] FedCFamC1F 218
Decision Date

CaseChat Overview and Summary

The case of Brogden & Brogden involved a dispute between the parties over the final parenting orders, specifically concerning the father's desire for more time with the children, while the mother sought sole parental responsibility and no contact. The court was required to decide whether sole parental responsibility should be awarded to the mother or if equal shared responsibility should be granted. Additionally, the court had to determine if any orders should be made for the father to spend time with the children and, if so, what those orders should be. The court also had to consider the statutory considerations set out in s 60CC of the Family Law Act 1975 (Cth), specifically the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

The court found that the children would benefit from a meaningful relationship with both parents, but that the relationship with the father had been compromised due to his past abusive conduct. The court gave greater weight to the need to protect the child from psychological harm, as the children presently fear their father. The court also found that the intractable conflict between the parents was not conducive to an order for equal shared parental responsibility. Consequently, the court ordered that the children shall live with the mother, who shall have sole parental responsibility for the children. The court also ordered that the children may spend time with the father in accordance with their wishes, and that the father shall engage the services of a family therapist psychologist to conduct family therapy for the parties and the children. The costs of the family therapy were to be paid by the father.

The court further ordered that the parties provide each other with notice of any proposed change to their living arrangements and any serious illness or emergency admission to hospital suffered by either child. The mother was also ordered to provide the children's school and treating doctors with written authority permitting them to provide the father with information relating to the children. The father was restrained from denigrating the mother, approaching within ten metres of her, discussing the court proceedings with or in the presence of the children, or disclosing any court documentation to them. The mother was granted liberty to remove the children from the Commonwealth of Australia at any time, and the father was permitted to provide gifts and cards to the children for special occasions. The costs associated with the issue of passports for the children were to be met by the mother. Finally, the Independent Children's Lawyer was ordered to explain the meaning of the court's orders to the children.

Orders

Orders of the court

SYC 2521 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BROGDEN

Applicant

AND:

MR BROGDEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERS THAT:

1. X born 2007, and Y, born 2010 (“the children”) shall live with the mother.

2. Ms Brogden (“the mother”) shall have sole parental responsibility for the children.

3. The mother shall consult with Mr Brogden (“the father”) about decisions to be made in the exercise of her sole parental responsibility as follows:

(a) The mother will advise the father in writing via email of long term decisions to be made for the children and all related information;

(b) Within fourteen (14) days, the father will respond to the mother in writing via email, providing his views and input, which the mother will genuinely consider; and

(c) The mother will advise the father in writing via email of her decision and the reason behind the decision.

Spend time with the father

4. The children may spend time with the father in accordance with their wishes.

5. For the purposes of Order 4, the parties are to take all necessary steps to facilitate time between the children, or either of them, and the father, in accordance with their wishes.

6. The children may contact the father by electronic means, including mobile device or email, in accordance with their wishes.

Family therapy

7. The father shall engage the services of a family therapist psychologist (“the family therapist”) to conduct family therapy for the parties and the children. Such family therapist is to be agreed between the parties and, failing agreement, to be nominated by the Independent Children’s Lawyer (“ICL”).

8. For the purposes of the family therapy pursuant to Order 7:

(a) The mother and father shall attend appointments requested by the family therapist;

(b) The mother shall do all things necessary to facilitate, encourage and deliver the children, to all appointments as required by the family therapist;

(c) The costs of the family therapy be paid by the father;

(d) The mother shall authorise the psychologist to contact the child’s psychologist Mr D should the family therapist wish to so;

(e) The family therapist be provided with a copy of the transcript of the evidence of Dr J, in addition to his Honours judgement.

Information

9. The parties provide to the other not less than 28 days’ written notice of any proposed change to their respective living arrangements including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children, whether that person be a friend, relative, partner, tenant or any other person.

10. Each party notify the other of any serious illness suffered by either child (and provide a medical certificate), and immediately it is practicable to do so, of any emergency admission to hospital or injury suffered by either child whilst in the care of the other party.

11. The mother shall forthwith provide the children’s school with a written authority that permits the school to provide the father with all information that it provides to parents in accordance with the school’s policy.

12. The mother shall forthwith provide the children’s treating doctors with a written authority that permits such medical provider to forward to the father all medical information referable to that child.

13. The father be permitted to contact the school that the children attend to request copies of any school reports, school circulars or notices which parents would ordinarily be expected to receive.

Restraints

14. Each party be restrained from denigrating the other party to, or in the presence or hearing of the children, or allowing any other person to do so.

15. The father be restrained from approaching within ten (10) metres of the mother.

Discussing court proceedings and disclosing court documents

16. The father be restrained from discussing the Court proceedings with, or in the presence or hearing of the children, or disclosing to the children any of the Court documentation, or allowing any other person to do so.

Travel and issue of passports

17. The mother have liberty to remove the children from the Commonwealth of Australia at any time, and to that end, the necessity for the consent of the father to the issue of passports to the children be dispensed with.

18. The costs associated with the issue of passports for the children be met by the mother.

Gifts and cards

19. The father be permitted to provide a gift and/or cards to the children for special days such as the children’s birthday, Easter, and Christmas, with such gifts and cards to be sent to the mother at a nominated post office box or provided to the children in the event they make contact with the father in accordance with these orders.

Other

20. Within seven (7) days of the date of these orders:

(a) The ICL shall explain the meaning of these orders to the children; and

(b) The mother is to take all necessary steps to make arrangements with the ICL for the purpose of enabling the ICL to explain these orders to the children, at a time and place nominated by the ICL.

Costs

21. In the event any party seeks an order for costs, application in the appropriate form supported by affidavit is to be filed and served within 28 days of these orders. Thereafter, if no application is made, there will be no order as to costs, and the provisions of s 117(1) of the Family Law Act 1975 (Cth) shall apply.

THE COURT ORDERS IN CHAMBERS THAT:

22. The document emailed to chambers on 20 January 2022 by the Independent Children’s Lawyer entitled “[Brogden] Parenting Orders (ICL Proposal)” be marked Exhibit “ICL2”.

23. The document emailed to chambers on 21 January 2022 by the Applicant Mother entitled “MOTHER’S PROPOSED MINUTE OF ORDER” be marked Exhibit “Q”.

24. The Respondent Father’s email to chambers on 21 January 2022 at 2.57pm be marked Exhibit “5”.

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.

Background

Background to the litigation

In summary, the mother seeks, on a final basis, a continuation of no time with the father, whilst the father seeks a re-introduction of time with the children, beginning with supervised time, increasing ultimately to alternate weekends and every Wednesday night during school terms, and approximately half of school holidays. In her final proposed minute of order, the ICL proposes for the children to spend time with the father in accordance with their wishes.BRIEF BACKGROUND The parties commenced cohabitation in 2005, married in 2006, and separated on 30 January 2012. A divorce order was made on 17 August 2013. From 2012 until April 2019, the children lived primarily with the mother, and spent time with the father in accordance with the consent orders. The mother presently works as a part-time professional, working 30 hours per week. The father is a self-employed health professional. His business continues to trade successfully. The mother commenced a relationship with Mr B in 2014, which continues and appears stable. Mr B is involved in the construction industry. In 2016, their daughter, Z, was born. The father commenced a relationship with Ms C in 2013. This relationship ended in February 2019. It was common ground that although the father and Ms C went through a ceremony of unspecified form in City K in 2013, they never entered into a marriage recognised under Australian law. Ms C has two children with her ex-husband; W, aged 13, and Q, aged 11. During the relationship, W and Q resided with the father and Ms C for eight nights per fortnight. The evidence showed W and Q formed a close relationship with the children due to their similar ages. It is unnecessary to detail more of the background here. The parties have been separated for a decade. The relevant history between 2012 and 2019, and then up to trial is most relevantly dealt with below under the statutory considerations set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).JURISDICTIONAL MATTER The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“new Act”) came into operation on 1 September 2021. The new Act continues in existence this Court, formerly the Family Court of Australia, as Division 1, and the Federal Circuit Court of Australia as Division 2 (ss 8 and 9). Section 25 of the new Act gives original jurisdiction to this Court by transfer from Division 2 (ss 25(1)(a) and (b)) or as “conferred…by any other Act” (s 25(1)(c)). Section 31 of the Act used to clearly confer jurisdiction in matrimonial causes and parenting proceedings under Pt VII. However, Pt IV of the Act has been repealed, including the former s 31, and the terms of s 69H in Pt VII have been amended to refer only to Division 2. This has created some lack of clarity, where none previously existed, as to the jurisdiction of this Court (Division 1) in matters filed in the Family Court prior to 1 September 2021. It is long established that it is the “first” duty of the Court to consider whether it has jurisdiction: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at [54]; New South Wales v Kable (2013) 252 CLR 118 at [34]. Consequently, and bearing in mind this judgment will result in orders affecting the lives of children, I should express a view about jurisdiction.

Evidence

Evidence Before The Court

Accordingly, what remains to be determined is the following:(a)Whether there should be sole parental responsibility for the mother, or equal shared responsibility;(b)Whether any orders should be made for the father to spend time with the children; and(c)If so, what these orders should be.EVIDENCE The mother relied on the following documents:(a)Case Outline filed 13 January 2022;(b)Application for Final Orders filed 18 April 2019;(c)Mother’s affidavit sworn 12 August 2021;(d)Mother’s affidavit sworn 17 December 2021;(e)Affidavit of Ms C sworn 18 June 2019;(f)Report of Dr J dated 3 July 2020;(g)Final consent orders dated 30 November 2012;(h)Orders of Rees J dated 17 September 2019;(i)Brogden & Brogden [2019] FamCA 666; and(j)Tender Bundle emailed 13 January 2022. The father relied on the following documents:(a)Case Outline filed 10 January 2022;(b)Father’s affidavit sworn 22 December 2021;(c)Affidavit of Ms O sworn 11 January 2021;(d)Affidavit of Ms O sworn 16 December 2021;(e)Affidavit of Mr P sworn 20 August 2021;(f)Affidavit of Mr R sworn 20 August 2021; and(g)Tender Bundle filed 11 January 2022. Both parties were cross examined. The mother appeared as a witness via Microsoft Teams. She mostly answered questions directly, but also at times used her answers as an opportunity to make speeches. I note there were occasions when she appeared to be unable to answer simple questions directly, but this may have been, partly at least, a result of the deficiencies in the technology and fragmented connections. The mother was compelled at times to disconnect and reconnect with the hearing. Counsel and the witness often spoke over each other. I observed the mother closely as she gave evidence. She may have exaggerated some of her evidence about the father, but I found the mother to be generally reliable and credible. The father and the paternal grandmother were cross examined in the witness box in court. I had the opportunity to observe them closely. The father had considerable difficulty answering simple questions directly. He continuously used answers as an opportunity to make speeches about his merits as a father, refute misconceptions that he believed the mother or the Court were labouring under, and to repeat his contention that the mother had coached the children to lie about him. I found it necessary several times to direct him to answer questions, with more focus, rather than use his answers as an opportunity to advocate for his case. As explained in more detail later in these reasons, he maintained, almost to the bitter end, implausible positions about his own conduct, and a refusal to accept the children feared him because of anything he had done. I am unable to accept the father as a reliable witness. Unless otherwise stated, where his evidence diverged from the mother’s evidence, and where necessary, I prefer the mother’s evidence. Perhaps more importantly, as explained more fully later, despite his statements in oral evidence that he has learned from past mistakes and that he will not repeat hysterical and dysregulated behaviour exhibited in September 2017, I am not persuaded the father has insight into his own conduct, which has taken place over many years, and which has caused the children to be fearful of him.

Decision

Reasons for decision

A review of this decision, heard by Rees J and delivered on 17 September 2019, confirmed the suspension of time: Brogden & Brodgen [2019] FamCA 666 (“the review judgment”). As will be explained more fully later in these reasons, Rees J’s review judgment was based, in part, on a substantial consideration of evidence of an incident on 7 September 2017, and the records from the children’s school between 2017 and 2019 containing evidence that the children feared their father because of his angry and abusive behaviours. By consent, Dr J was appointed as the single expert on 14 April 2020. He produced a report dated 3 July 2020. On 5 August 2020, the father filed an application in a case seeking interim orders for time with the children. The application was dismissed on 12 October 2020 by a senior registrar. The father then filed a review of this decision on 20 October 2020. The matter came before me for interim hearing on 15 January 2021, where I made orders for the proceedings to be expedited. The matter was listed for a final hearing in September 2021, however on 23 August 2021, I made orders vacating the September dates. This was due to ongoing lockdowns in the Greater Sydney Area caused by the Delta strain of the Covid-19 virus. In Brogden & Brogden [2021] FamCA 642, I explained that by reason of the nature of allegations of family violence made by the mother, an electronic hearing would be deficient in permitting a clear and fair assessment of the father’s evidence. The proceedings were relisted for five days commencing on 17 January 2022. The children have not spent time with their father since April 2019, save for occasional chance meetings, and for the purposes of interviews with a court appointed expert in 2020, discussed at greater length later in these reasons. In summary, the mother seeks, on a final basis, a continuation of no time with the father, whilst the father seeks a re-introduction of time with the children, beginning with supervised time, increasing ultimately to alternate weekends and every Wednesday night during school terms, and approximately half of school holidays. In her final proposed minute of order, the ICL proposes for the children to spend time with the father in accordance with their wishes.BRIEF BACKGROUND The parties commenced cohabitation in 2005, married in 2006, and separated on 30 January 2012. A divorce order was made on 17 August 2013. From 2012 until April 2019, the children lived primarily with the mother, and spent time with the father in accordance with the consent orders. The mother presently works as a part-time professional, working 30 hours per week. The father is a self-employed health professional. His business continues to trade successfully. The mother commenced a relationship with Mr B in 2014, which continues and appears stable. Mr B is involved in the construction industry. In 2016, their daughter, Z, was born. The father commenced a relationship with Ms C in 2013. This relationship ended in February 2019. It was common ground that although the father and Ms C went through a ceremony of unspecified form in City K in 2013, they never entered into a marriage recognised under Australian law. Ms C has two children with her ex-husband; W, aged 13, and Q, aged 11. During the relationship, W and Q resided with the father and Ms C for eight nights per fortnight. The evidence showed W and Q formed a close relationship with the children due to their similar ages.

Ratio Decidendi

Legal Principle Established

I turn then to the relevant considerations.PRIMARY CONSIDERATIONS In order to determine the child's best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:(a) The benefit to the child of having a meaningful relationship with both of the child's parents; and (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying these considerations, the Court is to give greater weight to the consideration in subsection (b) (see s 60CC(2A) of the Act). Section 60CC(2)(a), “meaningful relationship” The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 (“McCall”)); (b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]–[119]; and(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2007) FLC 93-313; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407. By the close of the evidence, there did not appear to be any real dispute that the children would benefit from a meaningful relationship with both parents. They clearly have a meaningful relationship with the mother. They also clearly had a meaningful relationship with the father until May 2019. I accept this has now been compromised. The expert evidence, discussed below, suggests this loss itself is likely to be a detriment for the children. The question was whether and how a meaningful relationship with the father could be restored and rehabilitated prospectively. The answer relies upon weighing and balancing all the relevant considerations, but especially in this case, upon a consideration of issues of aggressive or abusive conduct by the father, the unchallenged fact that the children both presently fear their father, and whether orders can be crafted to protect the children from psychological harm in the future, while also allowing the relationship with the father to return. Section 60CC(2)(b), “abuse” and “family violence” A central area of dispute concerns allegations of the father’s behaviour constituting abuse and family violence, and the question of any risk he may pose to the children. It is necessary here to set out some statutory definitions. The terms “abuse” (see s 4) and “family violence” (see s 4AB(1)) are defined in the Act as follows:abuse, in relation to a child, means:(a) an assault, including a sexual assault, of the child; or(b) …(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or(d) serious neglect of the child.family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.