Calder and Andrews and Anor

[2015] FamCA 824

FAMILY COURT OF AUSTRALIA

CALDER & ANDREWS AND ANOR [2015] FamCA 824

FAMILY LAW – PARENTING – INTERIM ORDERS – Where a parenting final hearing was compromised in 2014 and the children moved from the wife to the husband on what the parties agreed was an interim basis – On the return of the proceedings, the wife sought an adjournment of the final hearing to enable her to pursue an interim change of residence back to her – Application misconceived and fails.

Family Law Act 1975 (Cth)

APPLICANT: Mr Calder

RESPONDENT: Ms Andrews

INTERVENOR: Ms Dawkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 391 of 2013

DATE DELIVERED: 5 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 September 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT:	In Person
THE INTERVENER:	In Person

INDEPENDENT CHILDREN’S 

LAWYER:

Ms Conlan

Victoria Legal Aid

Orders

1. That save as to the paragraphs below, the application of the wife filed 11 August 2015 and the response by the husband filed 14 September 2015 are dismissed.

2. That all outstanding applications for substantive orders are adjourned for final hearing to commence at 10.00am on 27 January 2016 (subject to any part-heard matter).

3. By 4 pm on 13 November 2015  the applicant husband file and serve upon all other parties:

   (a)       Any further affidavits of evidence to be relied upon.

4. The applicant husband pay all required court fees by 4 pm on 22 January 2016.

5. By 4 pm on 27 November 2015 the respondent wife file and serve upon all other parties any further affidavits of evidence to be relied upon.

6. By 4 pm on 25 January 2016 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

7. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

FAMILY REPORT

1. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of a family consultant nominated by the Director of Child Dispute Services for the purposes of the preparation of an updated family report not to be commenced until after 1 December 2015 but to be completed and released by 20 January 2016 AND for the purposes of this Order the Court requests that Family Consultant Ms B be the appointed consultant unless she is unable to undertake the task.

2. The appointed family consultant:

   (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

   (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

   (c)may have access to any documents produced under subpoenae that have been released for inspection;

   (d)should consider the factors in s 60CC of the Family Law Act 1975 so far as the consultant considers them relevant; and

   (e)should advise the Court generally about matters of child welfare and development.

3. That for the purposes of any family report, the family consultant also read the reasons for judgment delivered this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calder & Andrews and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Calder

Applicant

And

Ms Andrews

Respondent

Ms Dawkins
Intervenor

REASONS FOR JUDGMENT

1. There are three interim applications before the Court.  Sequentially in time, they are:

   (a)An application in a case filed on 11 August 2015 by Ms Andrews, the mother of C, D and E;

   (b)The response to the mother’s application as filed by Mr Calder on 14 September 2015.  Mr Calder is the father of the children; and

   (c)An application in a case filed 28 August 2015 by Ms Dawkins, the former lawyer for the mother (which application was resolved by consent orders).

2. The interim nature of these proceedings concerns parenting orders that emanate from an order made on 23 September 2014 by this Court.

3. On 23 September 2014 in the trial list of cases, a compromise was reached between the mother and the father.  At that point, the trial had been proceeding for some time.  It is unnecessary for me to set out the full background.  Suffice to say, the mother agreed for the children to live with the father.  Additionally, she agreed to the following orders:

   4.That the mother attend upon Dr F, and the father and the children also attend as directed by Dr F, for reportable intensive therapeutic family counselling.

   …

   5.That the father spends time with the children as recommended by Dr F.

4. There were then a number of orders which unashamedly gave the father the discretion about determining the mother’s contact.

5. The transcript of the discussion about the making of the orders remains on the court file.  I raised that transcript in discussions with the parties in the current hearing

6. In September 2014, the mother was represented by counsel but to my knowledge, the father has not had a lawyer throughout these proceedings.  Both parents remain now, unrepresented.

7. The Court had the benefit of counsel appearing for the Independent Children’s Lawyer in 2014 and again in the current hearing.

8. The proceedings in relation to Ms Dawkins see 1(c) above were compromised.  Her application was that money held in trust by another solicitor be applied towards costs totalling $17,000 which were incurred by the wife with Ms Dawkins.  That order could not be made on the basis of the evidence before the Court.  That evidence related to the fact that the funds in trust had something to do with the purchase of a caravan and site in or by a superannuation fund.  The fact that nothing has occurred in relation to that fund (indeed it may be a non-complying fund) does not make it the property of the parties. 

9. As a result of discussions and with the agreement of the parties, an order was made that if, in any property proceedings, the wife receives money or property, it be applied first to her debt to Ms Dawkins.  Ms Dawkins was unable to point to any legal principle or authority of this Court which would enable me to make an order that the husband pay his wife’s costs. 

10. Returning then to the interim parenting proceeding, there was no doubt in September 2014 that the orders were of an interim nature.  The proceedings were relisted in December but nothing had advanced.  The hearing came back before me in July 2015 ostensibly for a continuation of the final hearing at which point, the mother sought an interim hearing rather than a final hearing.  Her position as will be seen from the description below was that the 2014 orders should be overturned and the children returned to her.  The parties filed their material for this hearing accordingly. 

11. On the basis of the evidence of the mother, whilst clearly still problems, one might conclude that progress was being made about her relationship with the children to the extent that set times should follow and now be set.  Indeed, in about May 2015, that was the direction that the parties were heading.

12. When the hearing began, counsel for the Independent Children’s Lawyer supported by both parents, sought an alteration to Order 5 of the orders made on 23 September 2014.  As it transpired, the impetus for that alteration came from Dr F herself.  By consent of the parties, I then made an order in the following terms:

    That the mother spend time with the children by arrangement and agreement in writing between the mother, the father and the Independent Children’s Lawyer in consultation with [Dr F].

13. The mother otherwise sought interim orders which when examined and précised, meant as follows:

    1.That the father not commit family violence towards herself and the children;

    2.That all restrictions on her contact with the children be discharged;

    3.That the children be called upon to express a view as to the impact of the current restrictions in their time with the mother, on their lives;

    4.That conjoint parent sessions with Dr F commence; and

    5.That a new family report be undertaken but not by the person who wrote the report in 2014.

14. The father sought orders dismissing the mother’s application and then that a new family report be prepared by the 2014 family report writer.

15. The evidence that the mother relied upon was contained in an affidavit filed on 11 August 2015.  It can be summarised as follows:

    ·   The Court had reserved the right to allow the children to come into court and voice their concerns directly to the judge but this had never occurred;

    ·   The family report writer Ms B had distressed the children and they had advised the mother that Ms B was mean, would not listen to what they had to say and called them liars;

    ·   Ms B’s report was not accurate as a result of not having listened to the children;

    ·   Ms B was biased, “imbalanced” and her report was “unwarranted”;

    ·   The report writer was biased and therefore it would be unfair to have another report so prepared by Ms B;

    ·   As a result of the orders in September 2014, the children were “forcibly transitioned” into their father’s care which resulted in them having an extremely “traumatic and distressing separation” from their mother;

    ·   The children had continually displayed high levels of distress when transitioning back to their father’s care although the current transitions had become more manageable as a result of the intervention of Dr F;

    ·   There is a breakdown of communication as to appointments and the work to be done by Dr F;

    ·   On 23 February 2015, G ran away from the school grounds and went to the mother’s home.  As a consequence, the police were called by the school and an officer spoke to G whereafter G spoke to Dr F and the matter was resolved;

    ·   There is a “Full Intervention Order” that says that no family violence was to be committed towards the mother and the children and as a consequence she was concerned for the children’s safety and wellbeing;

    ·   In May 2015 Dr F told her that the parties should be moving to a shared custody arrangement where the children were to spend equal time with both parents and she made some recommendations along those lines;

    ·   Notwithstanding the indication of Dr F, the time on Sunday 24 May 2015 was from 10.00am to 5.00pm which disappointed the children because they were not able to stay overnight;

    ·   The children’s distress has now escalated to the point that they say:

    They would rather die than continue to stay at their fathers and if they do they would harm their father and themselves (sic);

    ·    She provided the children with a safe, caring and nurturing environment;

    ·    As a teacher she had the ability to have the children before and after school as well as holidays;

    ·    Whilst in the father’s care, the children were attending after school care each day which made completing their homework more difficult and they were struggling to keep up with their educational obligations; and

    ·    A number of friends had noted that the children were currently not themselves and were unhappy, withdrawn and unable to make eye contact.

16. The essence of that evidence is clear.  The mother says that whilst there were problems, things were moving with the assistance of Dr F towards a normal environment where the children were to be shared.  Nothing could be further from that. 

17. I stress that I have not been in a position to make findings of fact as to the mother’s evidence (but for that to which I shall turn in relation to Dr F) because it was not tested.  It may be when the evidence is tested that some of the propositions set out above are proved.  However, as a result of the plausible evidence of Dr F, to which I refer below, I find it would not be in the best interests of the children to make any alterations to the existing regime.

18. The reference by the mother in dot point 10 above, to the “Full Intervention Order” is somewhat disconcerting.  In the transcript of the hearing in September 2014, there was a discussion with counsel for the mother in which the very power to make an order for an injunction under the Family Law Act 1975 (Cth) (“the Act”) (which the mother wanted) was raised. Counsel for the mother indicated that her client would “undertake” to discharge the Magistrates’ Court order. The mother said that not only has that not happened but that her counsel gave advice inconsistent (so it seems to me) with what the Court was told. There is therefore, an extant intervention order and the mother claimed that the father had breached it. It is unnecessary for me to make any findings about those breaches in this hearing but no doubt they will be the subject of scrutiny at a further trial.

19. Importantly therefore, the very first order that the mother seeks is unnecessary (and beyond the power of the Court) because of the very existence of the State invention order.  That part of the application must therefore fail.

20. The issues associated with the mother’s concerns about the children not having spoken to the Independent Children’s Lawyer or to the Court along with her concerns about the children speaking to Ms B, can all be rejected when I turn below to the evidence of Dr F.  Additionally, the mother’s assertion that the restrictions on her movements with the children should be relaxed was the subject of cross-examination of Dr F who has now emphatically rejected any basis to take such a step.  It is important therefore that I deal with the evidence of Dr F.

21. No report from Dr F was prepared but neither was one requested.  Dr F was made available for cross-examination by the Independent Children’s Lawyer and the mother indicated that she wished to ask her questions.

22. The evidence of Dr F was therefore as follows.  She saw her role as being about helping the parents to move through a transitional stage whilst imposing strong boundaries, control of communications and giving advices to what the children were going through.  It would seem that most of this strategizing was directed to assisting the mother. 

23. In October 2014, according to Dr F, the children’s behaviour was histrionic and exaggerated.  By January, the children were being helped through appropriate transitions to the point that Dr F was prepared to (and the parties had agreed upon) unsupervised time.  That position, although it is not a matter immediately of concern to the Court because of the nature of paragraph 5 of the orders of September 2014, needs to be reviewed.  There is a strong suggestion that supervised time might be necessary as a result of the mother’s behaviour in recent months.

24. The mother has the children on alternate Sundays from 10.00am to 5.00pm and also on their birthdays.

25. It is very disconcerting that in the last 12 months there have been five notifications to the Department of Health and Human Services in Victoria and it would seem from the cross-examination by the mother of Dr F and her concessions from the Bar Table that all of these have been made by her.

26. As late as 25 May 2015, the mother was alleging that the father was in bed with his daughter.  On 1 June 2015, the Department was informed that the children feared their father, were talking about harming their father, one of them having been put outside the house, G regressing in his behaviour, and D having marks on her back from being in bed with her father.  Other points were raised.  In every one of the notifications, the Department has taken no steps either to express concerns about what was happening in the father’s household and they certainly have not intervened in these proceedings.

27. According to Dr F however, the explanation of the mother to her for having made these notifications was substantially different from that which she told the Department.  On 26 June 2015, the mother told Dr F that she was “forced” to make the notification because Dr F was unavailable and G was suicidal.

28. Dr F was of the view that there was no such concern.  She did not believe that G was suicidal and when she spoke to the mother, the mother agreed.  Dr F said that she made the mother “hear” the children about their enjoyment and their relationship with their father.  The mother clearly does not accept that relationship is good.  As she said, she was simply listening to what her children were saying.  Just how much was being promulgated by the mother is a matter for trial but Dr F had very strong views that the children were being manipulated by their mother.

29. Dr F was told of the evidence of the mother to which I have earlier referred.  She said that she agreed she had spoken to the mother about moving on in the relationship and increasing the mother’s role and time but that that was clearly dependent upon the mother’s behaviour changing in relation to the transitional periods of handover and the statements being made about the father’s care.  In other words, the mother had to indicate to Dr F that she had no concerns about either of those two things.

30. It is abundantly clear from the mother’s evidence that she considers the handover problems still exist.  She raised the fact that there was a need to change the handover point.  It seems to me that it is not the handover point that is the problem but the fact that other people have to be involved.  It is the second point however that is of significant concern because the mother makes it very clear that she does not accept that the father is appropriately caring for the children or is in a reasonable relationship with them as a parent.  That can be seen in what the mother told Dr F but more importantly, what she alleged to the Department of Health and Human Services.

31. In relation to the question of G running away in February, Dr F maintained that it was her view that this was orchestrated by the mother because G would not have organised it himself. 

32. Dr F’s view was that the mother had no insight and that her first notification immediately after G ran away indicated that she had no idea of the needs of the children or how a sharing arrangement could work.

33. Dr F noted that the father had been cooperative in relation to moving towards a sharing arrangement but that he had withdrawn from that position having regard to the behaviour of the mother.  I can understand that predicament.

34. In relation to questions such as the children speaking to other professionals and indeed to the Court, Dr F was definitely against any such arrangement.  She said that the evidence would show that the mother was encouraging G to make false allegations yet when Dr F spoke to G, he was making no such allegations.  She thought that by introducing other people into this particular area, the children would say what the mother wanted them to say.  To this extent, those sorts of professional appointments were damaging to the children.

35. So concerned was Dr F that she indicated that she was dismayed about the notifications and thought that on the basis of those occurring as late as June 2015, it was unlikely that the mother would get any insight into the problem.  She opined that the mother needs to control her behaviour.

36. As for any change in the orders, Dr F saw no reason.  She said that it was not her role to set the arrangements and she agreed with the amendment to paragraph 5 of the 2014 orders to which I have earlier referred.

37. Nothing in the mother’s cross-examination of Dr F indicated that the evidence that Dr F had given me was wrong.  Indeed, Dr F said to the mother in response to a question:

    You haven’t listened.

    Dr F said that a change of family report writer was inappropriate because of the professional role of the report writer and then there was the obvious difficulty of the children being involved again in interviews.

38. The mother’s position was very clear.  She said that she accepted what the children said was a fact.  What is disconcerting about that statement is whether she is manipulating the children or making the concerns she has, a subject of conversation.  Dr F’s evidence was that there was no concern in her discussions with the children.

1. Further issues between the parties were then canvassed as to whether a trial should be ordered immediately or should be delayed.  It is clear that the evidence that would be given by Dr F if given now, would be unsupportive of the mother.  As I expressed, these children need finality.  In my view that hearing should be as soon as the Court can practically arrange it. 

2. Having rejected the first of the five orders sought by the mother, I turn to the evidence in relation to the other four issues that she raised.

3. Dr F made clear that her concern with what was happening in recent weeks justified a reconsideration of the supervision issue.  Counsel for the Independent Children’s Lawyer was reluctant to adopt such a position but as I indicated, with the amended and agreed order in paragraph 5 as set out above, there would be no need for the Court at this stage to become involved unless agreement cannot be reached after consultation with Dr F.  That issue can be revisited on a final basis.

4. In relation to the children speaking to the Court, the mother asserted that that was a position that was reserved in September 2014.  I do not have access to the transcript of that particular day but I have a very clear recollection of indicating that I would revisit that position if that was what the mother wanted the Court to contemplate.  No determination was made at that time but having regard to the evidence of Dr F, it would be most unlikely that I would be prepared to put the children through that exercise. 

5. In relation to the family report writer, there does not seem to me to be any basis upon which I could find that the family report writer is biased or the children would not be cooperative with her now.

6. In relation to the fourth point raised by the mother, I leave that issue to Dr F.  Thus, nothing in the mother’s evidence supports the making of the orders she proposed.

7. The father’s only proposal was for a family report to be prepared by Ms B updating the details so that there could be some finality and in my view, that makes sense. Notwithstanding the paucity of evidence and the strong position of Dr F, this matter still requires consideration of the law. Part VII of the Act sets out how the determination of such a dispute should be approached.

8. In Goode and Goode [2006] FamCA 1346; (2006) FLC 93,286, which was a case about interim arrangements rather than final hearings, the Full Court observed about legislative intent at paras 72-73:

   72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A). 

9. Thus, the structure of the Act is the proper starting point.

10. It is unnecessary for me to make an order or even consider the question of equal shared parental responsibility in this case.  I find that it is inappropriate because of the interim nature of these proceedings and therefore s 61DA(3) applies.  The very issue of the communication between the parents in relation to decisions about the children can be reviewed in a few weeks time when the matter comes back before the Court on a final basis.  As matters currently stand, the mother has made it very clear that she does not wish to have any communication with the father.  She consistently points to the existence of the intervention order.  In addition, the mother by her very complaints about the father has a very low opinion of him and as such, communication between them would appear unlikely.  I do not therefore intend to contemplate that issue.

11. Section 65D provides that in proceedings for a parenting order, the court may, subject to provisions to which I shall turn, make such parenting order as it thinks proper. The word “proper” invokes a discretion in the Court to do what it considers is right for the child’s future. In assessing that, the Court has to look at what is needed and how each of the parents is likely to fulfil those obligations.  I am conscious of the fact that the parties’ arrangements really need to be the subject of negotiation with the assistance of Dr F and if that fails for whatever reason, the matter will ultimately have to be determined on a final basis by the Court.

12. Ultimately, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (s 61CA). The use of the word “paramount” means that it is not the only consideration but if there is a conflict, the child’s best interests may prevail. That mandatory requirement appears in the Act also in s 65AA.

13. To determine what is in a child’s best interests, the Court is required to consider the matters set in s 60CC. It is important to note that the legislature used the word “consider”. In Goode and Goode, the Full Court considered the meaning of “consider” and said that it suggested a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in the various relevant sections in the Act were met. In this case, having considered the mother’s proposals and the evidence presented, a cursory examination of s 60CC will suffice.

14. The views of the children will be taken into account in the final trial but even on an interim basis, the position that the parties agreed to in September 2014 can still cater for that by the involvement of Dr F.

15. In respect of s 60CC(3)(b), (c), (d), (f), and (i), the evidence supports an interim arrangement that the children not be removed from their father because of Dr F’s views (which seem plausible) about the mother’s behaviour.

16. There are no practical difficulties in relation to the mother having the time with the children.

17. The Court is obliged to contemplate family violence.  There is a family violence order in existence but I am unaware of why it was made and having regard to the discussion between the Court and counsel for the mother in September 2014, I am somewhat perplexed as to why it was still there.  Be that as it may, I have no evidence to make a finding that the father has been responsible for family violence or that the children are at risk of family violence in his care.

18. In my view, all of those matters militate against an alteration of the existing arrangement which is that the parties work towards a resolution with Dr F. 

19. Accordingly, it is in the best interests of the children that that proposed arrangement set up in September 2014 be continued to the point at which Dr F either decides she can no longer be involved or, having regard to the amended orders I have made this day, the agreements break down completely to the point that there is a standoff and the Court needs to intervene.

20. The mother also relied upon affidavits by a number of people and no-one challenged them.  However, their evidence is limited to observations which, in some cases, are inconsistent with the evidence of the father and Dr F.  That evidence was also of a character-reference nature and that was unhelpful.  I do not feel persuaded by anything they said which might influence the Court to make orders as proposed by the mother.

21. The mother’s application fails and must be dismissed

I certify that the preceding Sixty One (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 October 2015.

Associate: 

Date:  5 October 2015