Calvo & Magaw

[2023] FedCFamC2F 1633

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Calvo & Magaw [2023] FedCFamC2F 1633

File number(s):

MLC 2877 of 2020

Judgment of:

JUDGE HARLAND

Date of judgment:

4 December 2023

Catchwords:

FAMILY LAW – parenting – family violence – mental health - whether the child should spend supervised contact with the father four times a year – whether the child spend no time with the father – whether the child have no contact with the father.

FAMILY LAW – practice and procedure – father unable to participate in the proceedings – matter proceeded by way of submissions with the father’s litigation guardian appropriately making significant concessions

Legislation

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.18

Division:

Division 2 Family Law

Number of paragraphs:

21

Date of hearing:

4 December 2023

Place:

Melbourne

The Applicant

Medson legal as Litigation Guardian

Counsel for the Applicant

Mr Kanarev

Solicitor for the Applicant

Chinka (Hep) Steel

Counsel for the Respondent

Mr Testart

Solicitor for the Respondent

Loddon Campaspe Community Legal

Counsel for the Independent Children’s Lawyer

Mr Marchetti

Solicitor for the Independent Children’s Lawyer

Inclusive Family Law and Mediation

ORDERS

MLC 2877 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CALVO Applicant
AND:	MR MAGAW Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	4 DECEMBER 2023

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The mother have sole parental responsibility for the child X born in 2017.

3.The child live with the mother.

4.The child have no contact with the father.

5.The Independent Children’s Lawyer is hereby discharged.

THE COURT REQUESTS THAT:

6.Victoria Legal Aid pay the costs of the Litigation Guardian in the sum of $3,517.40.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE HARLAND

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The matter proceeded by way of submissions only with the litigation guardian appearing on behalf of the father making significant concession as was appropriate in the circumstances. The mother seeks orders that the father not spend any time or communicate with their daughter X aged 6. The father seeks to have professionally supervised time with X 4 times a year. The Independent Children’s Lawyer (‘ICL’) supports the mother’s position. The father did not require the mother to be cross-examined and accepted the fact that he has had significant ongoing mental health issues where there have been incidences of him experiencing psychosis and incidents of family violence.

3. There is no issue in dispute that the mother is a capable parent and is caring well for X. There is also no issue in dispute that the observations from the supervised visits, that the visits between X and her father were positive with the father positively engaged and engaged in a manner that was properly focused to X's needs. However, that is not the only factor for consideration, in this case, it is whether or not the need to protect X from psychological and emotional harm outweighs her right to maintain a relationship with both her parents, and it is very much X's right rather than the right of any adults.

4. What is also clear from the material is that there is a considerable history of the father experiencing extremely challenging mental health issues over a period of several years. There have been previous proceedings with Final Consent Orders made on 29 April 2021 which provided for the father to have professionally supervised time at a contact centre, with that time then progressing to supervision by one of the paternal grandparents. Part of those Orders also required the then litigation guardian, who was the paternal grandmother, to inform the mother within 24 hours of any hospital admissions. It is apparent from the chronology set out in the mother's affidavit that there were several missed visits by the father in 2021 which the mother says were not explained. The paternal grandmother then brought an enforcement application against the mother.

5. The enforcement application did not proceed and the paternal grandmother has not brought her own application to spend time with X. It is clear from the material, and it is conceded, that there is no relationship between the mother and the paternal family and that there is no trust between them. There were difficulties when the paternal grandmother was the litigation guardian and then when the father's partner was a litigation guardian. Those difficulties highlight when family members are trying to do their best for another family member who is clearly, incredibly unwell. It is a highly distressing situation and being a litigation guardian is not easy particularly when and, clearly, if anything, it probably worsened relations between the two families rather than strengthened them.

6. The reality is that the mother has no trust that she will be informed of what is going on with the father and she has good reason for being concerned about that, which is clear from the subpoenaed material that she refers to in submissions. There is no material from the father. Whilst he was able to participate to a limited extent in the child impact report in 2022, he was unable to meaningfully participate in the family report. The Court Child Expert made attempts to interview the father with a support person present. However, the father was unable to understand the nature of the report interviews and was becoming increasingly distressed as the Court Child Expert tried to engage him.

7. After these further proceedings were commenced, the father has had three scheduled visits with X, and I referred to the positive nature of those earlier. Two visits were cancelled, with the last visit being in February 2023. The Interim Consent Orders that were made on 6 September 2022 and provided for the spend-time with orders to be discharged if the father did not attend on more than two consecutive occasions and the mother says, in her affidavit, that the father cancelled scheduled visits for September and November 2023.

8. The father's case is that X would benefit from being able to have personal experience of her father in a controlled setting four times a year rather than her not having a sense of who her father is. The mother says that X has a photo of her father and herself from when she was younger that she is positive about.

9. It is clear from the family report that with the passage of time that X does not really have much of a sense of who her father is. She knows she has a father, but she does not know who he is as a person. Any relationship she would have with him would be limited to four supervised visits a year. It would really be in the nature of what is commonly referred to as identity contact rather than engaging in a meaningful relationship.

10. I am concerned about the practicability of the orders the father seeks in that regard. I note that further concerns were made on the father’s behalf with respect to communication and, certainly, as I indicated, there was no criticism of the mother not wanting to have contact with the father and being concerned about the contact. However, the reality is, this is not a case where there is any relationship between the mother and the paternal family.

11. It is not a case where the mother will receive any information as to how the father is progressing. The impact of having any communication from the father on the mother and her parenting capacity is a relevant consideration for me to take into account. It is clear from the material, that she has experienced significant frightening events of family violence by the father during the brief time they were in a relationship. She has also learnt of violent incidences involving the father since. It is unknown as to whether or not the father's acts of violence were related to him being mentally unwell at the time or entirely separate because violence does not necessarily equate to a mental illness. Violence is often bad behaviour by choice.

12. The father proposes that he give 48 hours notice, or a longer period if the Court requires, of his intention to exercise a visit with X so that the mother would be limited to only having to make sure that X was available for those four times a year. What that ignores is that the mother has to either choose to prepare X for a visit with the potential of it not occurring, which is what has occurred previously, or not prepare her and deal with how X might react to that situation. The impact that it would have on the mother and the stress and uncertainty as to whether or not that time is going to occur is an important factor. This has to be seen in the context of the particular history of this matter where it is clear that despite, certainly, the father's hopes and efforts, his mental health has deteriorated rather than improved and there is a real likelihood of him not being able to exercise the spend time arrangements in the future. He has not been able to exercise them consistently during the proceedings.

13. It would not be workable to have orders requiring there to be four visits a year without there being some way of those orders coming to an end if the father does not attend. That alternative position was urged upon me by the father's Counsel, and I have considered whether or not to make an order such as the one in the September 2022 Interim Orders stopping the visits if the father misses two consecutive visits. But I am also mindful that, in effect, such an order has been in place and one thing that really struck me in reviewing the material is the timing of a particular family violence event and the fact that the mother deposes her finding out about this later through subpoenaed material.

14. The mother says in her trial affidavit that reading the subpoenaed material of the father's medical evidence has confirmed her concerns and raised concerns about not being told important information about the father at the time it occurs. This means after the fact she is reading about how unwell he has been and continues to be and how he is also taking illicit substances. This at the same time as either seeing X or cancelling time without explanation. Reading this information must have been incredibly distressing and concerning for her. Then there was an incident in early 2023 where the father assaulted his partner, who was also the father’s litigation guardian at the time. This was a very serious violent incident of which not much more is known. I note that shortly after that, his partner ceased acting as litigation guardian.

15. The mother also discovered that the February 2023 visit took place because he was able to get six hours release from the hospital. She was not informed about that. That is really troubling, in terms of safety concerns, because that is something that the mother quite reasonably is going to be concerned about if she is having to think of whether or not he is going to be well enough to turn up for a supervised visit, and so on. That is something that she has been living with for the past few years. I think it would be different if there was some sort of relationship between the two families where information was exchanged and there was some level of trust.

16. All the lawyers involved in this case would have been involved in cases like that where, realistically, the only safe order has been to make an order for supervised time four times a year, sometimes due to mental illness, sometimes due to other things, but that, on balance, providing that child with some sort of connection has ameliorated risks. That is completely absent in this case. What is also absent is we really do not know what likely prognosis or outcome there is for the father in terms of his mental health. This is not a criticism of the litigation guardian at all, it is simply a lack of evidence because of the circumstances of the case.

17. The father has, over several years, been in and out of hospital, chronically and mentally ill. I am sure that at times it has been incredibly distressing for him and really distressing for his family to see him so unwell and in such torment. I have no doubt that that continues to be something that is incredibly difficult for him and his family to deal with. Not being able to see X would add to his distress. However, I have got to weigh what potential benefit there would be to that limited time against the risks to the mother as well as X. The risk to the mother is to her compromising her parenting capacity because it seems clear, on the material, that the father is, at times, violent and engages in anti-social behaviour and his mental health has worsened.

18. There is a real possibility that if I made the orders that the father seeks that the reality would be that time would not occur because of his ill health. As I indicated, if I was to entertain such an order, I would be making an order that that order be discharged after two consecutive non-attendances by the father. However on balance I have determined, not to make that order and to make the order that mother and the Independent Children’s Lawyer seek, for there to be no time and no communication, because I think that it is necessary for there to be some sense of relief and space for the mother knowing she is not going to be contacted by the father and she is not going to be preparing X for contact when she is uncertain whether it will even take place.

19. It may be that there are further proceedings if the father becomes well and that is a separate matter. The Court Child Expert had concerns in the family report about how realistic the father's proposal is and how it may cause further detriment to X. Part of that is with the unpredictability of knowing whether he is going to be able to attend or not and the difficulties that X might experience as she grows older and becomes more aware that she does not have the kind of relationship with her father that many other children are able to. This is made clear at paragraph 63 and 64 of the family report.

20. In addition, there are concerns about the father's use of illicit substances, and in particular methamphetamines, and it is not uncommon for someone who has chronic ill health such as him to look to drugs for some relief and to self-medicate. It appears, from the evidence, that that is what the father does. However, that can cause real problems in and of itself. It can cause its own psychosis and other damaging behaviour. The father's Counsel submitted that to require the father to undergo drug tests before supervised contact would be putting another hurdle in front of him that he may well not be able to meet, given his difficulties and incapacity to engage with the proceedings. This only underscores the concerns about the viability of his proposal and the potential harm to X and the potential compromise to the mother's parenting capacity. This is in circumstances where, otherwise, there is no criticism of the mother's parenting and the mother does not have extended family supporting her, though she has a close circle of friends. In all of the circumstances I am satisfied that it is not in X's best interest to make orders for there to be any time or communication and I propose to make the orders sought by the mother.

21. Counsel for the litigation guardian acknowledged rule 3.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 does not apply to the litigation guardian. With respect to the litigation guardian, I will request that Legal Aid pay the costs of the litigation guardian in the sum of $3,517.40, noting that Legal Aid has provided a grant that was up to $5,000 so it falls well within the range. I am grateful to the Legal Aid Commission for granting that funding because, otherwise, it would have been impossible to advance this case. I want to make it clear, I am not critical of the litigation guardian for seeking to agitate this very limited issue where the mother was not cross-examined. It was perfectly appropriate to, with all the concessions that were made which were also appropriate, to seek the Court to determine this issue. I thank all Counsel and their instructors for their assistance in this matter.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Harland.

Dated:       19 December 2023