Cape and Cape [No 1]

[2012] FCWA 59

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CAPE and CAPE [No 1] [2012] FCWA 59

CORAM: MARTIN J

HEARD: 20 JUNE 2012

DELIVERED : 20 JUNE 2012

PUBLISHED : 3 JULY 2012

FILE NO/S: PTW 3762 of 2011

BETWEEN: MRS CAPE

Applicant

AND

MR CAPE
Respondent

Catchwords:

Family Law - Appeal - Stay - Interim child issues

Legislation:

Family Law Rules 2004, r 22.11

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Rynne

Respondent: Self Represented Litigant

Solicitors:

Applicant: Perth Family Lawyers

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Carlin v Carlin (1977) FLC 90-320

Kelly and Kelly (1981) FLC 91-007

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1On 20 June 2012, I informed the parties that I was not prepared to grant the respondent husband’s application for a stay of “all orders pronounced” by me on 1 June 2012. Those orders provided as follows:

1.Until 14 June 2012;

(a)the requirement for the child to live with the Respondent father each alternate week be suspended.

(b)the child spend time with the Respondent, such time to be supervised by an independent supervision agency, with the Independent Children’s Lawyer to arrange such supervision, if practicable, subject to the availability of the Service Provider, and with the cost of supervision to be borne equally by both parties.

2.Both parties ensure that they are able to be contacted at short notice to facilitate the contact arrangements, including attendance for any assessment process on an urgent basis.

3.The proceedings otherwise be adjourned to 14 June 2012 at 9.30am.

2The orders extended only to the next hearing of the matter on 14 June 2012, so no order for a stay of the orders of 1 June 2012 is now really required.

3However, on 14 June 2012, a further order was made that the child of the parties spend supervised time with the respondent father on Saturday, 16 June 2012, at 3.00pm at the [Supervision Service C], with the cost to be borne equally by both parties, and the proceedings were otherwise adjourned for further hearing to 20 June 2012.

4On that date the following further orders were made:

1.Subject to any further order, and with the intention that the parties in due course overall bear equal financial responsibility for family therapy with [Mr R] and supervised contact over the next month, the Respondent father be permitted:

(a)to borrow funds to advance the costs of family therapy with [Mr R] and supervised time with the child.

(b) to sell any asset and use the funds to meet the costs, but in the event that the amount received exceeds the amount required for the therapy and supervised time in the next month, then any balance is not to be disbursed until any further order of the court.

2.Subject to any further order, if the funds are still required by the date the next payment is received from [Business A], the sum of $2,000 from the funds from [Business A] be paid to the solicitors for the Applicant wife who are to use the funds to pay the costs of the family therapy and supervised time from this fund.

3.With the intention that the Respondent father’s time with [the child] may return to an unsupervised or not strictly supervised, basis by the second half of the July school holidays:

(a)as a matter of urgency the father, mother and the child as required by [Mr R] attend upon [Mr R] for family therapy.

(b)the parties provide a two page summary to [Mr R] as to the background facts and the present issues for trial.

(c)The Independent Children’s Lawyer provide [Mr R] with copies of [Dr M]’s report and the associated audio tapes, [Dr W]’s critique of [Dr M]’s report and [Mr Cape]’s affidavits in which he provides his own critique of [Dr M]’s report.

4.Until further order, as soon as practicable, subject to the availability of funding, the father spend time with the child for at least 2 hours each weekend or such other time as can be facilitated, supervised by [Supervision Service A], or [Supervision Service B] if [Supervision Service A] is not available.

5.The Respondent father’s application for a stay of orders dated 1 June 2012 be dismissed.

6.The proceedings be adjourned for further hearing to 10 July 2012 at 2.15pm.

5These orders are clearly predicated on the basis that, at least in the short term, the father not spend time with the child on his own, so in reality it should be open to the husband to seek a stay of the orders which, in effect vary the previous interim child arrangements, which have applied for several months until 1 June 2012, that the child of the parties, a boy aged nine years, live with each parent on a week about basis pending the imminent trial of the proceedings.

Background

6The father [works in the arts industry] and the mother has been [an assistant] in the parties’ business during the relationship.

7The parties married [in] August 2002. The child of the parties, [D Cape], was born [in] September 2002 in […] Australia. The mother said the parties separated, to an extent, [in] May 2010, at which time the mother moved to Germany with the child, she says with the father’s agreement. In September 2010, the mother’s evidence is that she communicated with the father that she had decided she wished for the relationship to end on a final basis.

8In April 2011, the father with the agreement of the mother had taken the child to visit England, after which time he returned to Australia and has since retained the child here.

9The proceedings in this Court concerning this family commenced with an application filed pursuant to the Family Law (Child Abduction Convention) Regulations on 14 July 2011. The substantive orders sought the return of the child to Germany where the mother was then residing.

10Proceedings between the parties themselves were commenced by the applicant mother on 19 August 2011.

11Eventually, on 2 November 2011, Acting Judge Jordan found that as at 19 April 2011, the child […] had not been habitually resident in Germany, and that therefore the father’s removal of the child from Germany and/or his retention of the child in Australia in May 2011 was not wrongful.

12The mother then filed a Form 1 application on 29 November 2011 commencing proceedings for property settlement, and also seeking that the child live with her and that she be permitted to relocate with the child to Germany on or before 31 January 2012. The mother had returned to Australia while she pursued her application to be permitted to relocate to Germany with the child and the property settlement proceedings.

13By the time the parties attended a conference with a consultant at the Family Court, the parties had reached a short term agreement that the child would live with each parent on a week about arrangement.

14The proceedings were first listed before me on 30 January 2012 at which time the proceedings were included in the April Callover, with priority. Although no formal order was made, the parties then accepted that the child would live with each of them on a week about basis.

15Since then there have been many interim and interlocutory hearings, which have consumed an inordinate amount of court time which, even having regard to the difficult issues between the parties, has not been warranted.

16A significant issue has been the appointment of a Single Expert. On 29 February 2012, the applicant mother filed an application seeking that [Dr M], a Clinical Psychologist, be appointed as a Single Expert to prepare a report in the proceedings. The respondent father sought that [Mr T] be appointed the Single Expert Witness.

17On conditions set out in the order, on 1 March 2012, I ordered that Dr M be appointed as a Single Expert Witness, although Dr M’s costs were very high. The mother had accepted that she should advance these costs for the time being and, having regard to the comparative availability of the proposed experts, I was satisfied at that time that Dr M was the more suitable appointment.

18Unfortunately, it is an understatement to say that Mr Cape and Dr M did not hit it off and that there were disagreements about arranging appointment times, having regard to the proposed timetable for preparation of the report. As a result, Dr M took the extraordinary step of filing a lengthy affidavit in the proceedings, and attending court himself, in relation to the appointment arrangements. Mr Cape had even taken steps to report Dr M to his professional body, before the report had even been published.

19The parties have also been involved in fairly extensive interim and interlocutory proceedings regarding their property, or rather lack thereof, as though they have substantial assets, they have very substantial debts, and there are significant difficulties in this regard, particularly since the respondent is not presently engaged in his usual employment, he says because of the demands of the proceedings.

20Dr M’s report was made available to the Court on 15 May 2012. The report was accompanied by a covering letter specifically referring to the following paragraph of the report:

146.Whilst I stated above that there is no evidence the father has physically abused [the child], the father’s personality style I identified is a style that leads to unpredictable behaviour. Further, when people with the psychopathic style are exposed, they become depressed and angry and can do considerable harm to themselves or others. In the extreme this harm can extend to homicide and suicide. In the context of the Family Court and the exposure the father must now feel from this psychological examination, I believe it prudent to take a conservative approach and err on the side of putting in as many mechanisms as possible to protect [the child] and the father until such time as the Court can be assured that both are safe. It is for reason that I have spoken to the head of the Family Court Counselling Service and made the request of the Court that:

a.This report be released only to the parents in the presence of a Family Court Counsellor.

b.This report is to be read by the parents in the presence of a Family Court Counsellor.

c.The Family Court Counsellor assesses and monitors the father and if considered necessary [the child] for any signs that [the child] will be harmed or that the father will harm himself.

d.The report is released only during the week that [the child] is in the care of the mother.

e.Should the father react in any manner which might suggest he will either emotionally or physically harm the child, the urgent orders be issued that [the child] is to only see his father under the strictest supervision and/or that [the child] not see his father until the father can demonstrate that he had received treatment and that [the child] will be safe in his care. Even at this time, I would still advise that [the child’s] contact with his father be supervised until the Court is completely satisfied that [the child] is safe in the care of his father.

21At paragraphs 160 to 162 of his report he said:

160.I have concerns about the father’s capacity to parent [the child], particularly with respect to emotional abuse of [the child] and protective behaviours. I have documented previously the emotional abuse I believe is occurring and I have also documented the observed lack of protective behaviours that can occur as a result the father’s personality style. In the father’s care, [the child] is not only at risk of emotional abuse, but the father is acting in a manner which is overtaxing [the child] to the point that he is exhausted and just gives in to his father’s demands. In addition the father has no understanding of what he is doing to [the child] and it is my view that the father’s personality style prevents him from developing insight. Further, I am of the opinion that the father does not abide by rules, and actively seeks ways to break or get around rules, thus he is unlikely to comply with rules until such time he is cornered, or placed in a position whereby he has no choice but to comply.

161.From these opinions, I recommend that [the child’s] contact with his father is limited. I have given consideration to the father’s contact being supervised, but I believe this will impact the good that [the child] does get from his father, that is opportunities to play music and to play, have access to the creative aspects of his father and his father’s knowledge.

162.I recommend that the father’s contact with his father, regardless of whether the family lives in Australia or Germany, be limited to two days per week, that is one overnight stay per week. In the event that there is any evidence that the father emotionally abuses [the child], then this arrangement should be on a supervised basis only.

22As a result, arrangements were made for the parties to urgently attend a conference with [a] Counsellor of the Family Court Counselling and Consultancy Service.

23The proceedings were listed for further hearing on 29 May 2012, by which time it had been indicated through Legal Aid that an application for the appointment of an Independent Children’s Lawyer would be likely to be favourably considered. I therefore made an order for the appointment of an Independent Children’s Lawyer on that date.

24After the publication of the report, the mother had not returned the child to the father and nor had she sent the child to school pending the making of further orders. I ordered that she forthwith return the child to school and that the father be restrained by injunction from removing him from the school or from any other location which he attended including, but not limited to, any of the locations at which the child attends extra-curricular activities.

25On that date, the father had filed a Form 2 application seeking various orders challenging Dr M on his report and seeking the return of the child, amongst many other orders. He filed an extensive affidavit critiquing the report. The mother filed an amended Form 2 application, on 31 May 2012, proposing that the father spend time with the child at a recognised supervision agency or, possibly, under the supervision of some friends.

26On the adjournment date of 1 June 2012, the Independent Children’s Lawyer first attended Court, and indicated that she had concerns that any initial contact between the child and his father be supervised in some way. She required some time to make enquiries including speaking to the child, and other persons involved with him.

27The orders I then made are now the subject of the appeal.

28Since then, the father has spent some supervised time with the child, on 16 June 2012, and as previously outlined, further orders have been made for family therapy, on an urgent basis, and for the father to spend supervised time with the child.

29To his credit, the father has taken appropriate steps to deal with Dr M’s concerns, quite apart from his challenge to them, in that he has consulted a psychologist, [Dr W], who has provided the following:-

Preliminary Treatment Report (dated 30 May 2012)

1.On the 24th May 2012 I received a referral from [a GP] for psychological treatment under a GP mental health plan. The referral was for assistance with stress related to a complex family court matter. [Mr Cape] had been referred to a different psychologist who then recommended that [Mr Cape] see me as the other psychologist did not consider he had the expertise to assist.

2.At the time of writing this report I have seen [Mr Cape] for two appointments this week and I have administered the Personality Assessment Inventory (PAI). Therefore I have had contact with him for about 3.5 hours all up. I have a third appointment scheduled for Thursday 1 June 2012.

3.I would note that I have not seen the Court Expert Report of [Dr M] nor have I seen any court documents. I have not interviewed the former wife nor met the child. In my role as a treating practitioner I do not normally view such material.

4.[Mr Cape] has relayed aspects of the SEW report to me and especially raised comments about being assessed as a significant risk. Therefore in addition to the issues raised by the GP, my focus on treatment has been to identify and manage risk.

5.I provide this treatment report under section 15:41 of the Family Law Rules which allows for a treatment report by medical practitioners or other individuals independently of the normal 15.5 Rules. I have endeavoured to keep to limit my evidence to the terms required, namely 15.41 a, b, c.

a)Examinations, investigations and observations

6.In the two appointments to date, [Mr Cape] has presented as highly stressed about the situation with being labelled a risk and having his contact ceased with his son. He reported symptoms which are consistent with moderately high levels of stress but did not show signs of depression.

7.Cognitively [Mr Cape] came across as very intelligent and highly intellectual, with a sharp mind and good memory recall. There was no evidence that the situation was impacting cognitive functioning.

8.Personality-wise [Mr Cape] presented much as one would expect from [a highly educated individual], who has spent much of his adult life [in the arts industry]. He has a strong sense of independence, a quick and exacting mind, and strong views. I note in his reported history that he has a notable sense of injustice and tends to act strongly against those who he perceives as acting inappropriately, especially if they are in authority roles. He was talkative, and I found him to be reflective on feedback but I would suspect that he would not tolerate anything he perceives as coming from a position of ill-informed or incompetence.

9.The reported developmental history had no evidence of disturbance or trauma and probably reflected the opposite, namely opportunity and indulgence. There is no reported history (or current evidence) of depression, mental illness, violence, or illegal acts. There is no reported history of substance abuse, head injury or trauma.

10.I administered the PAI to screen for self-report mental health concerns. The PAI has scales which screen for response style. Interesting [Mr Cape’s] Positive impression scale (PIM) was low (t = 38) which indicates that he was unusually candid with this assessment process (most Family Court profiles have elevated PIM indicating that they are trying to put on a positive front).

11.The PAI had a mild elevation on the Stress scale indicating well above average levels of stress. There were no significant elevations on any of the clinical scales. There were a few mild indicators to suggest subjective feelings of anxiety, and that he is experiencing turmoil in his life. There were no indicators of suicide risk. The aggression scales were average with no indicators of concern. A mild elevation on the Antisocial Attitude scale (t = 61) would indicate mild difficulties with authority and social convention; however egocentrism and stimulus-seeking were below average.

12.On the interpersonal scales Dominance was average but Warmth was below average. This is a profile characterized by someone who would be somewhat distant in personal relationships. Others are likely to view him as reserved, and possibly aloof or unsympathetic. He is likely to value his independence and be less concerned than most people about the opinions of others.

b)Description of treatment

13.The two sessions to date have focused on gathering a history and providing some stress management strategies to help with court.

14.I am also providing advice as to how to moderate his personality style so as to not be perceived in an unfavourable light.

15.In so far as [Mr Cape] is willing to continue to see me, I am willing to provide ongoing treatment. Under a GP mental health plan he can see me for ten sessions. While I will have seen him for three sessions this week, I would normally only see him once per week.

c)Expression of Opinion limited to reasons for carrying out treatment.

16.In my opinion [Mr Cape] presents as stressed by the Family Court process and the publication of the SEW report. I would argue that his personality presentation is such that he would find some difficulty dealing within a rule based system, but I am unable to identify any risk factors which would cause concern of harm to others or himself.

17.I qualify my results in that I have only seen him twice and I do not have access to any other material.

18.If it assists the court, I am able to see [Mr Cape] weekly and under a Court Order report to the Principal Registrar if I see any signs which change my opinion of risk. I can do this for at least the next five weeks (in July and August I am away for several weeks in each month).

19.I further qualify my results that this is a clinical assessment and not an independent forensic assessment. A further assessment of risk could be conducted by someone in an independent role. I would however offer the self-serving statement that I endeavour to be independent when it comes to offering opinion, even with therapy clients.

30Dr W’s further letter, to the Independent Children’s Lawyer, dated 19 June 2012, said:

I thank you for [Dr M’s] report which I have read. I have trouble reconciling what I read with what I see. I have now had 6 sessions with [Mr Cape] and I still find no evidence of him being a psychopath or dangerous. Intellectual, opinionated, having a strong sense of right and wrong, is distrusting of the process, and verbose - yes - but nothing more sinister is evident in the time with me.

I listened to the CD recording from [Dr M] to go over with [Mr Cape] as you requested. From what I read in the report I was anticipating something far more concerning than what I heard. I also think I have a different take on what I heard in most of the tracks, and I offered my views before I allowed [Mr Cape] to give his responses to me as he is good at explaining or justifying.

•Track 5 has the material with [Dr M] raises about memory problems (he makes several pages of this in his report). When I listen to the tape I hear a man who is anxious about the process and presenting as preoccupied about what to say to the professional in light of the previous correspondence about his behaviour and court hearing. It does not come across as a memory problem but simply preoccupied and wanting to check details. The context of that meeting was clearly one which could account for the need to be checking of the details without going to explanations of memory problems.

•The first three tracks about the wishes and, and particularly track 3 is illuminating. When asked, [the child] states why he is saying what he is saying is "I'm telling you these things because I so want to go to Germany" (or something like that). This alerts me to the consideration that he may being saying things to achieve his goal. No wonder he is scared of how his father is going to react and is reporting that he is not scared of his mother's reactions - he knows what he has said will please her but not please his dad.

•Track 3 when [the child] is asked about what he fears, even the worst fears he can come up with are about his dad making him feel bad. While this is bad for the child, I think it is important to be careful to distinguish between the boy's fear and the father's behaviour.

•Track 1 where [the child] is explaining why Germany is better has all the hallmarks of a discussion with his mother being reported. Dad visiting easily, friends able to come etc, mum not being able to come to Australia. The stumbling and stammering at the end is indicative of him having running out of ideas of what to say and grasping for ideas. Some of his reasoning suggests to me discussion with his mother - not coaching but direct influence upon his views.

•The only track which had concern to me about the father's direct influence is the track 4 and [the child’s] discussions about lawyers. However, to make sense of that track I would need the context of the interviewing leading to that point as it is clearly only part of a story.

•In summary, the way I hear the extracts is that [the child] presents as a boy stuck in the middle of conflict and was taking his mother's side. In these tracks I hear elements of concerning influence on both sides.

I am happy to continue to see [Mr Cape] under his GP mental health plan. As stated to you on the phone, I am not prepared to get involved in family therapy with the father and the child but I am prepared to continue to see [Mr Cape].

31As I have indicated to the parties, while, on the evidence presently before me, I do not necessarily presently share many of Dr M’s concerns for the child’s physical safety, I am concerned that the child genuinely is very trepidatious about seeing his father on his own, at least in the short term, and feels very much subject to pressure from him.

32This is in accord with the child’s statements to the Independent Children’s Lawyer, and her submissions to me.

33In these circumstances, I am satisfied that the child’s time spent with his father should be supervised at least at this point, but as I have made clear from the terms of my orders of 20 June 2012, I am hopeful that the position can return to a less artificial and controlled arrangement in the very near future.

The stay application

34Rule 22.11 of the Family law Rules provides:

(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.

35Having regard to the matters generally, accepted to be taken into considering an application for a stay, e.g. Carlin v Carlin (1977) FLC 90-320, and Kelly and Kelly (1981) FLC 91-007, the substantive proceedings are expected to proceed to trial in September 2012. I understand any appeal may be heard in October 2012.

36The respondent filed his application promptly, and, I have no doubt, is bona fide in his application being, understandably, very concerned about the course of events.

37The general principle is that a successful party should not be deprived of his or entitlements pursuant to orders without good cause.

38A significant consideration is the risk that to deny a stay, may render a successful appeal nugatory, or make it impossible, or impracticable, to restore the situation presently existing.

39The father’s position is clearly that any restriction on his time spent with the child is likely to badly damage his relationship with him, giving the child unacceptable messages, and it is a matter of extreme urgency that the restrictions on the child’s time spent with his father, be reversed immediately.

40The mother supports the position of the Independent Children’s Lawyer, which is that the child’s relationship with the father is of great significance, but having regard to the contents of Dr M’s report, the situation needs to be handled very cautiously at this point.

41This is a position with which I agree, although for reasons which I have made clear to the parties, I am treating Dr M’s report and conclusions with significant caution.

42As to any hardship which would otherwise be suffered by the unsuccessful applicant for the stay, which must be weighed against the hardship that would otherwise be suffered by an unsuccessful respondent, the mother’s position is that her interest is just in protecting the child from pressure from his father, and the respondent is concerned that the hardship to him and the child would be irreversible.

43It is the child’s best interests that are the paramount consideration – while, the present position is unfortunate, I am satisfied that, in the short term at least, it is not in the child’s interests to spend time with his father without some supervision.

44As to the grounds and merits of the appeal, while it is possible the appeal has some merit, the order made is subject to ongoing and extensive reconsideration, and it seems likely, by the time the appeal is heard, not only will the present orders have been varied, but the substantive orders may have been made. The matter is next listed before me on 10 July 2012.

45I have therefore concluded that no order for a stay is warranted in the circumstances.

I certify that the preceding [45] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate