Clausen and Vinter

[2018] FCCA 3053

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLAUSEN & VINTER [2018] FCCA 3053

Catchwords:
FAMILY LAW – Parenting orders – final parenting and property orders made by consent – application in a case filed by father to obtain compliance with final orders – urgent child inclusive conference conducted – oral report by family consultant made recommendations – various versions of family violence – best interests of children – children’s views considered – Independent Children’s Lawyer appointed to explain orders to children – gradual resumption of parenting arrangements appropriate.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CC

Applicant: MR CLAUSEN

Respondent: MS VINTER

File Number: MLC 4004 of 2017

Judgment of: Judge A Kelly

Hearing date: 18 October 2018

Date of Last Submission: 18 October 2018

Delivered at: Melbourne

Delivered on: 18 October 2018

REPRESENTATION

Solicitor appearing for the Applicant: Ms Raniolo

The Respondent in person:

ORDERS

1. The children [X] born 2002, [Y] born 2003 and [Z] born 2004 (children) spend time with the father as follows:

   (a)commencing after school on Friday, 19 October 2018 until the commencement of school on Monday, 22 October 2018 and each alternate weekend thereafter.

   (b)from the commencement of term 1 in 2019, the father’s spend time with the children will increase from after school on Fridays until the commencement of school on Tuesdays on each alternate weekend.

   (c)for one half of the summer school holidays as follows:

   (i)from 3:00pm Christmas Day until 5:00pm on 10 January in 2018/2019 and each alternate year thereafter; and

   (ii)from 5:00pm on 10 January until 5:00pm on 26 January in 2019/2020 and each alternate year thereafter;

2. For the purposes of changeover for the father’s time with the children pursuant to paragraph 1 of this Order, the father collect the children from school at the beginning of his spend time and deliver them back to school at the end of his spend time.

3. The paternal grandmother be permitted to accommodate collection and return to school for the purposes of paragraph 2 of this Order.

4. The matter be adjourned for Mention on 1 April 2019 at 10.00am in the Federal Circuit Court of Australia at Melbourne.

5. Pursuant to s 68L(2) of the Family Law Act1975 (Cth) the children [X] born 2002, [Y] born 2003 and [Z] born 2004 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at

   (d)(

   (e)and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (f)the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing.

6. The Independent Children’s Lawyer be directed to explain these orders to the children.

7. Both parties must attend, participate in and complete an appropriate post separation parenting program including family counselling as soon as practicable and, further, each party must:

   (a)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

   (b)pay and otherwise be responsible for his/her share of all costs associated with the program;

   (c)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;

   (d)provide an appropriate certificate of completion of the Program to other party or their solicitors.

8. Both parties attend, participate in and complete a (omitted) program as soon as practicable and, further, each party must:

   (a)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

   (b)pay and otherwise be responsible for his/her share of all costs associated with the Program;

   (c)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;

   (d)provide an appropriate certificate of completion of the Program to other party or their solicitors.

9. Until further order, the father, his servants and agents be and are hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother, and

   (b)discussing these proceedings,

   to or in the presence or hearing of the said child/ren or any of them and from permitting any other person so to do.

10. Until further order, the mother, her servants and agents be and are hereby restrained by injunction from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and

    (b)discussing these proceedings,

    to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.

11. The father file and serve an affidavit exhibiting a copy of the certificate of completion of any Men’s behaviour change program completed by him.

IT IS NOTED that publication of this judgment under the pseudonym Clausen & Vinter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4004 of 2017

MR CLAUSEN

Applicant

And

MS VINTER

Respondent

REASONS FOR JUDGMENT

(Revised from ex tempore reasons)

1. The father commenced this proceeding by an initiating application on 27 April 2017.  The case was case managed throughout 2017, including by the obtaining of a Family Report.  It was fixed for trial.

2. On 26 September 2017, the parties submitted for the consideration of the Court minutes of proposed consent orders reflecting a compromise which they had been able to reach respecting both property and parenting issues.  The Court was persuaded that it was appropriate to make the orders which were formulated and agreed by the parties.  Those orders spelt out in particular detail the manner in which the parties’ parenting arrangements would proceed.[1]

   [1]             See paragraphs 23-32 of those orders.

3. I note the case management of the proceeding involved a number of orders throughout 2017.  In particular, I note that each party had the benefit of representation by highly experienced counsel who appeared for them on each occasion.  Not only were the parties represented by highly experienced counsel, they were represented by the same counsel on each occasion. 

4. Notwithstanding those consent orders, the parenting arrangements between the parties became complicated in 2018.  They became complicated to the point where, on 4 October 2018, the applicant father again sought relief in this Court so as to obtain compliance with the consent parenting orders.

5. The father’s application in a case was returnable in a duty list on 16 October 2018. Having regard to the volume of business in the Court on that date and the nature of the problems presented by the father’s evidence, I determined it was appropriate for an order to be made pursuant to s 11F of the Family Law Act 1975 (Cth) (the Act) so that a report might be obtained by an appropriately qualified specialist following a child inclusive conference at which the children could express their views.  The child inclusive conference was held on the morning of Thursday, 18 October 2018.

6. I was impressed by the report provided to the Court when the matter returned before me at 2.15pm on Thursday, 18 October 2018. 

7. Notwithstanding the recommendations made by the report writer, no agreement was possible in relation to the ongoing parenting arrangements and how suitable efforts might be taken in the children’s best interests to take steps toward repairing the relationship which they have with their father.  The report writer was in no doubt that a primary consideration in the present case which warranted particular attention was that the children should have the benefit of maintaining a meaningful relationship with both of their parents. 

8. The report writer further recounted various versions of family violence of one form or another, many parts of which were disputed by one or other of the parties.  Whilst the children expressed their own views in relation to those matters, there is some reason to consider whether the children’s views were truly their own views or views which they were expressing on behalf of others.

9. However, one thing is patently clear.  Each of the children seeks that their relationship with each other be restored and that they be able to spend time together. 

10. The three children are all now in their teenage years.  I am most concerned that the views expressed by the report writer should be recognised; in particular, that an ongoing meaningful relationship by the children with their parents, and with each other, should be restored gradually and in a way which is likely to promote the prospect that their future education will not be harmed. 

11. When a court is asked to make interim orders in a parenting matter, it must consider the best interests of those children in accordance with the principles prescribed in Part VII Subdivision BA of the Act. The primary considerations are set out in sub-s 60CC(2), while the additional considerations are those set out in sub-s 60CC(3). In particular, I have had regard to the benefit of the children having a meaningful relationship with both of their parents and with each other.

12. I have also had regard to the need to protect the children from being exposed to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence as each of those terms is defined in the Act. I have given consideration to the additional considerations raised by sub-s 60CC(3)(a) of the Act, that is, I have given weight to the views which each of the children has expressed.

13. I note with some real concern the view expressed by the report writer that the stance presently being adopted by the respondent mother is one of passive parenting.  In the course of this hearing a submission was made by the mother asking rhetorically:

    What am I supposed to do if they don’t want to go to their father?

14. As I pointed out to the mother, as a parent of these children she has the responsibilities of a parent.  It is not sufficient, indeed, it is totally unacceptable that a parent should adopt a passive stance in relation to the parenting of adolescent children whose development is at an important stage where they are, hopefully, going to mature and obtain their best education so as to promote their prospects in their future life. 

15. Having regard to the matters raised by the family report writer, I raised with the parties the way in which there might be a gradual resumption of parenting arrangements. 

16. To that end, the matter was stood over until 4.00pm in order to facilitate the opportunity that the parties might themselves explore a proposal by which a gradual resumption of parenting arrangements could be achieved.  When the matter was called on again at 4.00pm, I was informed that the mother had taken the opportunity to spend time conferring with a duty lawyer and that the parties had been unable to reach any agreement respecting the resumption of parenting arrangements.  I have, in those circumstances, made the orders which are set out in these reasons for judgment.

17. If there is an optimistic aspect of this problematic case, it is that the parties were at least able to agree that they would each participate in a parenting program, together with a (omitted) program as was recommended by the report writer.  As I understood it, they were each prepared to abide by injunctions that they would not denigrate the other parent in the presence of the children. 

18. In addition, the applicant father has confirmed his willingness to verify to the Court that he has already undertaken a Men’s Behaviour Change program and that he will so verify that he has done so by exhibiting a certificate of his attendance at such course to an affidavit which he will file and serve.  Having regard to some of the submissions which have been made in this matter, I have determined that it is appropriate to appoint an Independent Children’s Lawyer. 

19. In my opinion, it is of the first importance that these children have an opportunity to have explained to them in independent and careful terms the nature of these orders and what they will mean for them going forward.  The matter will be relisted for mention on 1 April 2019.  By that time, I will perhaps have some further evidence as to the success which has been achieved with good will on all sides to facilitate a resumption of parenting arrangements. 

20. I wish to record the benefit of the assistance that has been provided by the applicant father’s solicitor, Ms Raniolo, who appeared on a pro bono basis throughout the day with a view to assisting the parties in achieving resolution.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 29 October 2018