Carswell & Tenson (No 3)
[2024] FedCFamC1F 492
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carswell & Tenson (No 3) [2024] FedCFamC1F 492
File number(s): SYC 5497 of 2018 Judgment of: CURRAN J Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – PARENTING – Where final parenting orders made by consent – Where father sought leave to amend final orders sought to include orders for the parties to attend family therapy in the event of dispute – Where the mother opposed the order to attend family therapy – Where orders made by consent for the mother to hold sole responsibility for major long term decision making – Where it is not in the children’s best interests to make orders for family therapy – Application refused Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
United Nations Convention on the Rights of the Child
Cases cited: Aon Risk Services v Australian National University (2009) 239 CLR 175 Division: Division 1 First Instance Number of paragraphs: 71 Date of hearing: 4 June 2024 Place: Sydney Counsel for the Applicant: Mr Beckerling Solicitor for the Applicant: Kerr Fels Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Hall & Wilcox Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 5497 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARSWELL
Applicant
AND: MR TENSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The application of the father for the parties to attend family therapy is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carswell & Tenson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
The final parenting proceedings were settled by the parties by consent, those orders were made on 4 June 2024. Those consent orders importantly included a consent position that the mother be the sole decision maker about long term issues, but with an obligation to advise the father of any intended decision and to consider his views.
There remained one issue in dispute, being whether orders should be made in respect of family therapy. The respondent father made an oral application for the Court to determine this limited issue.
The parties agreed that the only outstanding parenting issue would be determined on the basis of submissions without testing the evidence in dispute, and each sought to proceed in this way. Short oral submissions were provided.
The applicant mother and the ICL opposed the orders sought.
The consent orders also set out orders proposed by the father and opposed by the mother on page eight. The document referred to Recital A and Order 1. It became clear during the father’s counsel’s submissions that he in fact sought that both be made as orders.
In those circumstances, I permitted the mother’s counsel and the ICL to make further submissions arising from the potential confusion from the wording of the area in dispute.
The orders ultimately sought by the father are as follows:
(1)In the event that [Y] suffers any significant health deterioration, the parties will meet with [Ms O] (or other agreed family therapist) for the purpose of discussing and agreeing upon the appropriate treatment plan to assist [Y].
(2)In the event of any significant disagreement about the implementation of these orders or the general welfare of the children, the parties shall attend upon [Ms O] (or other agreed family therapist) as soon as practicable in an endeavour to resolve the issues between them with the costs of such therapy to be shared equally between the parties.
An oral application for leave to amend the father’s application to include orders for family therapy was opposed.
The clear and obvious intention of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and orders by way of case management in anticipation of a hearing is to ensure that, consistent with principles of natural justice, parties have appropriate notice of the case they are required to meet.
The High Court has said, on a number of occasions, that this Court as the superior court of record is obliged to afford procedural fairness to all parties. This Court does not operate on the basis of formal pleadings, but any litigant before this Court is entitled to receive fair and appropriate notice of the matters to be agitated before it.
This application as to whether to permit the amendment is a matter of discretion. Guidance in respect of the exercise of discretion in relation to the applications for leave to amend is found in the often-cited decision of Aon Risk Services v Australian National University (2009) 239 CLR 175 (“Aon Risk”). The central questions as to whether to grant or refuse leave to amend an application, or to amend particulars thereof, are whether it would result in an injustice and in particular, I must consider the:
(a)Explanation for the delay;
(b)Prejudice to the respondent and other court users;
(c)Whether the proposed application has merit; and
(d)Whether the prejudice may be able to be compensated in any other way.
In this case the issue of family therapy had been canvassed in the past and indeed there had been some family therapy. The expert had expressed a view in respect of the utility of ongoing family therapy. Whilst not on notice of the precise orders now sought in relation to the issue, given that fraught communication and assistance necessary to assist the co-parenting relationship were central issues, I determined that it was appropriate for that application to be permitted.
On balance the mother had notice, any prejudice was overcome by a proper opportunity to make submissions, and consideration of the proposed order sought as something in the children’s best interests was appropriate.
Parental Responsibility
The Family Law Act 1975 (Cth) (“the Act”) sets out the considerations in respect of parental responsibility orders. The parties are each represented by experienced counsel. The ICL is also an experienced family law practitioner, as is her counsel.
It is significant to note that in this case the parties agreed to orders being made by consent in respect of parental responsibility and the other parenting orders, and each of the parties including the ICL consented to a final order that the mother be the sole decision maker about long-term issues in relation to the children.
This consent position was sensible and accorded with the recommendations Dr P.
Dr P had prepared two reports in these proceedings which became Exhibits 4 and 5. The first report dated 17 December 2020 identified a number of concerning matters as to the high conflict and poor communication and co-parenting of the parties and the negative impact of that conflict on the children.
The second report from October 2023 was an updating report but still identified serious concerns in relation to high conflict, poor communication and the impact on the children.
While the reports were not tested, they were admitted into evidence without objection for the purpose of this decision. I give weight to the opinions and observations of Dr P. Without repeating great slabs of her report, it was clear that she formed the opinion that the parties had difficulty communicating in the past, that the co-parenting relationship was fraught and that the children were negatively impacted and that this had not changed in the period between her first and second report.
The evidence supported a finding that the parties have had a troubled and sometimes hostile co-parenting relationship, and their capacity to collaborate for the benefit of the children is limited.
Dr P recommended an order for the mother to hold sole decision making in respect of parenting. The parties evidence, also untested, set out multiple occasions of conflict and disagreement in respect of parenting matters.
The evidence supported then the making of the parental responsibility order by consent which was made.
Parenting Orders
Section 60B of the Act provides that the objects of Part VII to do with children are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (CRC).
Section 60CA of the Act makes it clear that, when 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.
The Act sets out a new list of factors that a court must consider when determining the best interests of a child.
When determining whether parenting arrangements are in the best interests of the children, the Court must now consider all of the factors in s 60CC(2) of the Act:
(a)what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm):
(i)of the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
The ICL’s position about the orders sought
The ICL opposed the orders being made.
She observed, and it is accurate to say, that the parties had been before the Court for six years, have remained in high conflict, and the conflict has impacted the children. This, she said, was illustrated in many ways, but importantly was illustrated in the example reported by Dr P where the issue of parenting arrangements was raised and the parties’ daughters burst into tears. There can be no doubt as to the impact on the children of such long term conflict.
The ICL contended that the parties should not be compelled to attend family therapy when the mother is so opposed to doing so. She referred to in particular, paragraphs 102 to 104 of Dr P’s report from October 2023:
102. In December 2020, I opined that the lack of resolution of the financial matters was having a deleterious impact on the co-parenting relationship and has been distracting and fatiguing for the parents, and particularly for the mother.
103.I note from the subpoenaed documents that the family therapist [Ms O] reported that she had been very direct with the parents when discussing the impact on the children “highly damaging” of conflict between them. I also note that [Ms O] reported that the family therapy was not making any progress and that [Mr Tenson] found it difficult to provide the mother with support and respect.
104. Overall, I think there is no capacity for these parents to be able to resolve conflict and make parenting decisions collaboratively. Despite many attempted interventions, the passage of time and their intelligence, they have demonstrated an inability to compromise and make timely decisions for their children. I remain concerned that the children have become aware of some aspects of the parents’ disagreement, such as the issue of school enrolment, fees, and time in both households. I think that the parents have continued to embroil other professionals into their dispute, such as school staff, clinical/ treating staff, and others who should be focused on the children’s needs.
The ICL also relied upon paragraphs 41 to 47 of Dr P’s report, which captures the difficulties reported by the mother in the coparenting relationship, and specifically that family therapy was not going anywhere and was, in her mind at least, used to control and denigrate her:
41. In general, [Ms Carswell] described coparenting with [Mr Tenson] as very challenging and difficult. She described him as trying to exert power and control by either not responding to her or delaying his response to her correspondence. She said that [Mr Tenson] is consistently derisive and abusive in written correspondence. She said that she has the belief that [Mr Tenson] does not have any genuine capacity for connection and uses his tactics as a [professional] in these proceedings. She said that [Mr Tenson] has said things to her such as “I’m going to crush you”, and appears to thrive in conflict and be determined to win.
42. [Ms Carswell] said that [Mr Tenson] continues to be verbally abusive and threatening to her in his text messages. She read examples to me [which she said were text messages from [Mr Tenson]] including phrases such as “you are frankly pathetic”, “your day will come”, and negative descriptions of her generally. She said that the messages are consistently hostile and often abusive, and they are wearing her down.
43. [Ms Carswell] described numerous other problems in the coparenting relationship with [Mr Tenson]. She said there are difficulties when she is trying to resolve a particular parenting issue and [Mr Tenson] will not respond.
44.[Ms Carswell] gave an example of one issue of conflict regarding payment of the girls’ […] tuition. She said that [Mr Tenson] told the girls’ […] tutors that he refused to pay the fees any longer. She said that although [Z] was happy to finish the [lessons], X also said she did not want to [take] the [lessons] anymore, and [Ms Carswell] wondered whether [X] had become aware that there was an issue about finances. However, she said that she told the girls they needed to speak to their father about quitting [tuition], and that when they returned to her, they told her that their father told them they had to finish the term and could not immediately quit. However, [Ms Carswell] said that [Mr Tenson] then refused to pay for the […] lessons, and so they did not continue. More recently, [Ms Carswell] said that [Z] very much wants to [have lessons], but as she is not able to afford the fees, she has had to deflect the conversations with [Z], and [Z] has become upset and said “why is this so complicated?”
45.[Ms Carswell] said there are difficult practical matters between the two households. For example, she said that [Mr Tenson] refuses to buy the children any extra uniforms, and so they must take all of their belongings to school, such as taking their sports uniforms and extra bags between both households.
46.I asked [Ms Carswell] about family therapy, and she said that they have not continued. She said the therapy was not going anywhere and [Mr Tenson] used it as another forum where he could control and manipulate her. She said that [Mr Tenson] would use the therapy to denigrate her and focus on her perceived parenting deficits.
47.I asked [Ms Carswell] why she thought they had been unable to resolve the matter themselves. She said that [Mr Tenson] knows how to play the legal system and will not compromise and is using a strategy of trying to wear her out. She said that [Mr Tenson] is motivated by power, control and money. She said she has the view that he only wants to have the children to minimise his financial obligations and to punish her emotionally.
I give significant weight to the opinion of the single expert, particularly given her earlier involvement with the family and the preparation of the earlier report.
In particular, I note that the single expert did not support family therapy on an ongoing basis and this was partially based on her own opinion but also on the opinion of the therapist Ms O, who was reported to have had been very direct with the parents of the highly damaging conflict and that the therapy was not making progress.
The ICL contended that therapy which had occurred between 2020 and 2021, did not work then and there is no evidence that family therapy would be of any utility now, especially when one party was so opposed to it. I agree. Such conclusion is also supported by the opinion of both Dr P and what was reported by Ms O.
The ICL highlighted that, until yesterday with the consent orders being made, the parties had been unable to make collaborative parenting decisions, but also noted that the parents are highly intelligent, capable and resourceful, but notwithstanding these qualities, have not been unable to resolve the conflict between them over the last six years.
The mother’s submissions
The mother’s submissions adopted many of the ICL’s submissions, but also contented that there is no utility in the family therapy order proposed when the parties agree, and an order has been made that the mother holds parental responsibility.
It was submitted that such orders were irreconcilable with the consent orders that were already made and had no utility.
I do not accept that submission. The first proposed order seeks a mechanism in the event of a significant health deterioration for the parties to meet and agree on an appropriate treatment plan to assist Y. This could, on one view, occur prior to the mother ultimately making a decision and considering the father’s view. The second proposed order is more general, about disagreement in implementation of the orders and cost of family therapy.
The mother also raised concerns with what was described as the “vague terms” of the orders sought. I agree that with a history of an inability to agree on so many matters, that agreeing on defining a “significant health deterioration” or “significant disagreement about implementation of the orders” is likely to be a cause of disagreement.
The mother contended that the prospects of the proposed processes being of benefit in light of the observations of Dr P are low. I agree. It is contended that there has been no change in the parties capacity to compromise and as identified in paragraph 107 of Dr P’s report, the mother alleges family violence and coercive and controlling behaviours. No findings are made by me in relation to those behaviours and no findings are necessary, but her allegation and the observation of the high conflict are relevant.
In support of the submission that the co-parenting is so fraught, and that any order compelling family therapy is not supported on the evidence, the mother relied on pages 10-13 of her tender bundle which became Exhibit 6. This was an email exchange between the mother and the father from 2020. This was the day that Y ran away from home. This communication highlights the high conflict between the parties at this time of crisis. The timing of the email was in advance of the meeting with the family therapist where the mother, in this instance was at least asking for practical assistance and the father’s response was to refer to her “failed parenting.” This response it was contended was causing the mother profound trauma and stress.
A further example was provided at page 24 of the mother’s tender bundle which became Exhibit 7, being the text message of June 2020 where the father says to the mother in response to a text message “you are a disgrace…”.
Dr P in first report at paragraph 55 line 1622 notes the communications are fraught and she had a concluded view that the communication was a form of family violence. At page 59 at line 1727 she cites an example of the father being highly critical of the mother in times of crisis. This, says the mother, supports a finding that the parties are more likely to be in dispute during times of crisis.
Further at page 47 line 1237, Dr P identified the effect on the mother of the critical comments and the treatment of the mother by the father. That is the mother reports she is paralysed and stymied in her parenting. What flows from this submission is that an order compelling attendance at family therapy may have a negative impact on the mother and therefore on her capacity to parent the children.
It was submitted that there was accordingly no prospect of the family therapy yielding any benefit for the children.
The mother sought to rely on page 31 of her trial exhibit. There was an objection. I did not allow the evidence to be relied upon, as it was not able to be tested in circumstances where there is dispute as to the alleged language used. Given the agreed approach to determine this issue on the basis of submissions, I declined to admit that evidence because of the risk of accepting into evidence material that was in contest and it causing prejudice to a party is not appropriate. No regard was given to the letter.
The father’s submissions
The crux of the father’s submission was that Dr P’s conclusion at paragraphs 103-104, that the parents have no capacity to make parenting decisions collaboratively is patently wrong. Several examples were given to support that submission.
The first of those examples was the fact that the parties were able to enter into final consent orders, supporting a finding that Dr P must be wrong in that conclusion being that the parents have no capacity to make parenting decisions collaboratively.
Further, the father said in December 2020, Dr P identified the lack of finality in the financial matters as being quite crucial and having a deleterious effect in relation to the parent’s capacity to collaborate and to coparent. Accordingly, it was submitted that the Court could infer that once the Court decides and finalises the financial dispute, the parties will then be able to engage in family therapy and therefore it is more likely to have utility. That submission was based on the fact that the number one reason the parties are divided is the financial conflict. Whilst it is true that is the reason for their conflict, there is also significant conflict between the parties in relation to parenting.
The father relied on the following evidence in support of his submission that Dr P’s conclusion was wrong and that the parties could derive benefit from family therapy. The father relied upon his tender bundle at page 207 which became Exhibit 1, being a letter from 15 March 2021 which indicated that the parties had reached agreement at family therapy. The fact of agreement after a joint session at family therapy in 2021 to increase the time from three nights to four and five nights respectively, it was contended, was significant. It was contended that the agreement was made after a joint session with the family therapist and that agreement had endured since March 2021.
The husband’s tender bundle at page 247 to 252, was a letter dated December 2021 from VV Services. Page 250 of the document referred to particular recommendations including that “[the father] indicated his intention to remain involved with family therapy…” It is contended that this very service that Y was involved with supports the conclusion that family therapy has been successful in the past and is likely to be successful in the future.
The husband also relied upon pages 37 to 40 of the wife’s tender bundle which became Exhibit 3 which is to be read in conjunction with page 250 of the VV Services letter. This was an email from mother to father dated 23 July 2020 which referred to the mother saying “I want to use the process of family therapy….. I will commit to work through these issues with you….” This email shows a commitment to engage in family therapy from the mother and that she could see the benefits to the children of engaging in the process.
It was then contended for the father that the order sought is an order “for the wife to uphold her own commitment to family therapy”.
The final submission was that the two orders are genuinely an effort for this family to avoid going through the court process again, and that is by an intervening act of family therapy in the event of crisis or dispute as to implementation particularly when the father has the care of the children five nights out of 14, and particularly as the children are aware of the conflict between the parties that family therapy should be engaged in. In many cases this would be true.
Finally, it was submitted that the orders were contended to be sensible, and child focussed.
I do not accept the evidence relied on supports the conclusion that family therapy has been successful in the past and will likely be of benefit in the future for the reasons set out below.
Without referring to each of the s 60CC considerations specifically, I have considered the reports of Dr P, the documents tendered, the submissions of each party.
When determining the parenting arrangements that are in the best interest of the children, the court must now consider the s 60CC(2) factors that have been identified.
When looking at subsection (a), that is arrangements that promote safety, I am mindful that any arrangements that could increase tension and conflict between the parties and continue to potentially be an issue of safety for the children and could potentially expose the children to ongoing conflict and harm.
Consideration of the evidence and reasons
I am not satisfied on the evidence that the orders sought are in the best interests of the children for the following reasons.
Firstly, there has been high conflict in the parental relationship that has continued between the parties, and it has negatively impacted the children. I do not accept that the reaching of agreement on the doors of the court on the day of the trial with assistance of very experienced counsel, solicitors, ICL and an experienced ICL counsel is actually indicative of the parties’ ability to coparent, communicate and collaborate without the assistance of such people.
While it is true that there should be less reason for conflict once the property is determined, the parenting between these parties has been historically intractable. I have been taken to no evidence to support a finding or an inference that the behaviour of the parents toward each other will improve.
The letter relied upon to show the capacity and success of family therapy was initially persuasive, however, within several days a letter was sent in reply in March 2021 which has now become Exhibit 8 and in fact that letter supports the opposite conclusion. That letter makes it clear that there was no agreement reached, rather than what was contended, and it does not support the conclusion that family therapy assists this family, has done so in the past, and will continue to do so. Whilst there has been some benefit of family therapy, it is the express view of Dr P, and of the family therapist, that the utility is not ongoing.
The VV Services documents refer to the father’s willingness to participate in family therapy and in fact his partner’s willingness to do so, but I do not draw any further conclusion from that document.
The emails from 2020 show that there was a willingness by the mother to engage in family therapy, however the email exchange shows a disturbing degree of blame and tension between the parents. Such tension we know that the girls at least have picked up on and were observed to be palpably distressed by.
The orders as drafted also are open to interpretation and therefore ongoing conflict, and with these parties’ conflict, which has been a constant theme between them, should be avoided. The vague and subjective nature of the proposed orders are such that they should be avoided, in fact, they may be more likely to bring the matter back to Court.
There is compelling evidence that Dr P accepted, that the tension and difficult co-parenting relationship impacts the mother and may impact her parenting. Whatever the reason for that, she remains the primary parent and impact on her on an ongoing basis, if it was a deleterious impact, is not in the best interests of the children.
The fact of the consent orders for parental responsibility, read together with orders 27 & 28 made on 4 June 2024 about communication means the application for family therapy is largely otiose. Decisions will be made and father’s input will be considered.
If there is, as contended by counsel for the father, an improvement in the parties coparenting after the financial matters are concluded, which I sincerely hope for the sake of these children there is an improvement in the parents’ coparenting communication, and there is a crisis regarding Y’s health or there is a confusion as to implementation of the orders, the parties could chose by agreement to engage with a professional, but that is entirely a matter for each party.
I have given no weight to Y’s wishes as he has declined to meet with the ICL or Dr P. I have, however, had regard to the observations of the Dr P as to the palpable distress of the girls. The need to remove the source of stress for the parents and the children, the mother's vulnerability, the consent orders, and the other matters I have addressed all indicate against the orders sought. For these reasons the father’s oral application to have the orders made in the terms sought in relation to engaging with family therapy are not in the best interests of the children and will not be made.
I dismiss the application.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the oral Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 2 August 2024
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