Dalgarin & Headland

[2021] FCCA 708

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dalgarin & Headland [2021] FCCA 708  

File number(s):	DGC 2476 of 2019
Judgment of:	JUDGE BURCHARDT
Date of judgment:	8 April 2021
Catchwords:	FAMILY LAW – ex tempore ruling on spend time arrangements
Legislation:	Federal Circuit Court Act 1999 (Cth) s 42
Cases cited:	Rice v Asplund (1979) FLC 90-725
Number of paragraphs:	27
Date of hearing:	6, 7 & 8 April 2021
Place:	Dandenong
Counsel for the Applicant:	Mr Lovering
Counsel for the Respondent:	Mr Chislett
Counsel for the Independent Children's Lawyer:	Ms Damon

ORDERS

DGC 2476 of 2019

BETWEEN:

MR DALGARIN

Applicant

AND:

MS HEADLAND

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	8 APRIL 2021

THE COURT ORDERS THAT:

Amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 12 April 2021.

1.All previous Orders be discharged including that appointing the ICL.

2.While the Father is incarcerated, and only while the father is incarcerated, the mother have sole parental responsibility for the children of the relationship namely X born in 2010 and Y born in 2012.

3.The Mother keep the father informed of all decisions about decisions to be made in the exercise of her parental responsibility as follows:

(a)She shall inform the other Father about the decision to be made in writing;

(b)She shall consult with the father, where possible, on the decision to be made; and

(c)Take into account the father’s views, if she is able to obtain his views, and inform the Father of her ultimate decision.

4.Once the Father is released from prison then the parties immediately return to the regime of equal shared parental responsibility

5.While the Mother has sole parental responsibility pursuant to these orders, the mother be restrained by injunction from the following:

(a)Moving the children’s residence from their current residence without the written consent of the Father or Court Order;

6.The children live with the mother.

7.The children spend time and communicate with the father by agreement in writing between the parties and failing agreement:

(a)Until the father is released from prison:

(i)Each alternate Tuesday by telephone at 4:15pm;

(ii)Each Saturday, by Zoom at 9:15am;

(iii)On the children’s birthdays, the Father’s birthday, Father’s Day, Christmas Day, Orthodox Easter and Easter by telephone at time as agreed between the parties.

(iv)At such other times as agreed between the parties in writing.

(b)Upon the father’s release from prison:

(i)Every alternate Sunday from 10.00am until 1.00pm;

(ii)Every Tuesday at 4.30pm by video call if possible and by telephone if not;

(iii)Each alternate Saturday at 9.15am by zoom or by telephone.

(iv)At such other times as agreed between the parties in writing.

8.Changeover for time pursuant to Order 7(b) which do not happen at school are to take place at the Suburb B Police Station.

9.The mother shall continue to facilitate the child X’s attendance on her psychologist Ms C at D Psychology or if for some reason that is not possible, on another psychologist, preferably a child psychologist and shall comply with all lawful recommendations of the psychologist including whether counselling continues to be necessary, and Ms C, or other mental health practitioner that is treating either of the children, be provided with a copy of the Family Report of Ms E dated 28 September 2020.

10.The mother be permitted to hyphenate the children’s names to DALGARIN-HEADLAND, but is not permitted to change the children’s names to anything other than the hyphenated surname.

11.The mother to provide each child with a booklet of 20 stamps and provide encouragement to them to write to their father.

12.Both parents shall complete the Parenting Orders Program through F Family Centre at their earliest opportunity.

13.Upon the father’s release from prison, the parties shall attend a Family Dispute Resolution Conference through Victoria Legal Aid or such other like service to discuss appropriate spend time arrangements between the father and the children.

14.If the parties are unable to reach an agreement at FDR, the father shall not be prevented by the rule in Rice and Asplund (1979) from reopening proceedings, and the affidavit he files with the court must include detailed evidence in relation to:

(a)any parole or Corrections Order to which he is subject;

(b)the location of his residence, anyone he is living with and whether his residence is appropriate for the children to spend day / overnight time there.

(c)his source of income;

(d)his physical and mental health including any diagnoses and any prescriptions

15.Each of parties and / or their servants and agents be and hereby are restrained by injunction from:

(a)Denigrating the other party or any member of the other party’s household to or in the presence or hearing of the children nor allowing anyone else to do so;

(b)Discussing these proceedings or any other legal proceedings with or in the presence or hearing of the children, nor allowing anyone else to do so;

(c)Exposing the children to family violence nor allowing anyone else to do so.

16.The parties keep each other informed:

(a)Any significant injuries or illness the child/ren suffers whilst in their care, as soon as practicable, following such injury or illness;

(b)Any instances where the child/ren needs urgent medical attention during their time with them, immediately if possible, or otherwise as soon as practicable thereafter;

(c)Any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the party in whose care the children are in to inform the other party immediately);

(d)Any general medical or health issues relating to the child/ren, including but not limited to particulars of any medication prescribed to the children and name and contact details of the prescribing health practitioner.

THE COURT DECLARES THAT:

1.It is in the best interests of the children X born in 2010 and Y born in 2012 to be known as X DALGARIN-HEADLAND and Y DALGARIN-HEADLAND.

THE COURT ORDERS THAT:

17.The children previously known as X DALGARIN-HEADLAND born in 2010 and Y DALGARIN-HEADLAND born in 2012 now be known as X DALGARIN-HEADLAND and Y DALGARIN-HEADLAND.

18.The Respondent apply to the Victorian Registry of Births, Deaths and Marriages to register the change of the child’s name, in accordance with Order 17, and do all such acts and things and sign all such documents as may be required to give effect to that registration

THE COURT NOTES THAT:

A.The Father is incarcerated at the G Correctional Centre with his prison term ending in 2024. He will be eligible for parole in 2022.

B.The Father has completed the Triple P Positive Parenting Program whilst in custody and therefore has complied with Order 12 herein.

C.The Mother has commenced shift work may cause difficulties in her complying with order 7(a) above. If so, she will endeavour to facilitate an alternate weekday telephone call between the children and the Father.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 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 under the pseudonym Dalgarin & Headland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BURCHARDT:

1. It is perhaps important to remind ourselves how we got to where we presently are because it informs, in part, some aspects of the way the matter has proceeded that have been the subject of, perhaps, implicit criticism.

2. The originating application in this matter was filed on 2 August 2019.  On 17 December 2019, it was listed for trial on 22 October 2020.  Orders had been or then were made for a family report and for the appointment of an Independent Children’s Lawyer and other matters to move the trial forward.

3. On 22 September 2020, the matter was the subject of hearing and the matter was adjourned to the original trial date.  On 28 October 2020, it was relisted to trial on 6 April 2021.  On 6 April 2021, relevantly, an application was made to adjourn the matter by counsel for the father.  And this was opposed by the mother with whom the Independent Children’s Lawyer agreed although the Independent Children’s Lawyer’s position was more nuanced in as much as it was foreshadowed that there would be no opposition to the father bringing a further application without facing the Rice v Asplund 1979 FLC 90-725 hurdle after his release were he to be so advised. 

4. Having considered the matter on 7 April 2021, I dismissed the adjournment application and what I said then, of course, speaks for itself.  But essentially, I referred to the need for some measure of finality, but I also referred to the unusual circumstances of the case.  Most particularly, that being only one party could possibly give evidence in person despite the court’s best efforts to establish a video link to where the father presently is.  I therefore directed that the matter proceed by way of submissions which have, of course, been made today.

5. I do remind everyone, in passing, of section 42 of the Federal Circuit Court Act 1999 (Cth) which requires the court to proceed without undue formality and to endeavour to ensure that proceedings are not protracted.  I point out that I retire in May 2022 so that on any view of the matter, if the case is to come back, it will not be heard by me.  It seems to me that that only goes to enforce the desirability of by imposing as much certainty of outcome as it’s within my power, at this stage, to do because I will not be getting a crack at it later on.

6. Although final orders are to be made, in truth, in substance, it might well be thought that they are really interlocutory because agreed order 14 reads, and I will read it out:

   If the parties are unable to reach an agreement at FDR, the father shall not be prevented by the rule in Rice and Asplund 1979 from reopening proceedings, and the affidavit he files with the court must include detailed evidence in relation to:

   And it goes on to posit certain maters he would need to address. 

7. So whether as a matter of strict analysis these are final or interlocutory orders might be open to some measure of question.  I have proceeded in this fashion because it seems to me to be the best the court can do, to be fair to both of the parties, or I might say, all of the parties, bearing in mind the Independent Children’s Lawyer’s participation to resolve what is, in my experience, a unique set of circumstances.

8. With those introductory historical remarks in mind, I come to the particular issues that the parties have addressed.  And the first is the question of parental responsibility.  The father and the Independent Children’s Lawyer agree that while the father is in jail there should be an order for sole parental responsibility to the mother.  That is not of itself contested by the mother and it’s not necessary for me to say much more than that save that, quite obviously, the father cannot meaningfully exercise much parental responsibility while he is incarcerated.

9. Upon release, the father seeks that the matter move immediately to shared parental responsibility and that is supported by the Independent Children’s Lawyer and opposed by the mother.  I agree with the submissions of the Independent Children’s Lawyer that the father’s attitude to his circumstances and his capacity to parent is somewhat concerning.  There is a real lack of insight.  And I would note in passing that the remarks of Tinney J in his sentencing judgment would only go to reinforce that proposition.

10. However, I would read from paragraph 81 of the family report:

    The parents do not have a successful history of co-parenting.  Their relationship has been characterised by conflict and acrimony.  Mr Dalgarin has reflected that both parents have contributed to the current situation.  He appears to have understood the need for a change in behaviour.  Whether this translates to an actual change in behaviour is untested.  It is reasonably recent that X reports her father discussed going to lawyers with her if her mother was not in favour of video calls.

11. The wife submits that her materials disclose that the father is and I would put the matter perhaps rather globally – controlling and bullying.  I tend to agree with that.  There is somewhat of that flavour to the father’s position both in his materials and in submissions advanced on his behalf.  But I have not heard the evidence tested and that is an important qualification. 

12. I would observe that X’s school must be determined by the mother next year.  A decision needs to be made well in advance of the event and the mother should determine that issue.  If the father wants to change it, he will have to come out and make an application in due course.  I read from paragraph 80 of the family report:

    There have been several instances of family violence behaviour reported to police.  Both parents have equally been named as the perpetrator.  There was no reported abuse, injuries, property, damages, threat, or fear documented.  The reports all pertained to verbal arguments.  This behaviour is consistent with situational couple violence where the features include poor conflict management, both female and male initiated, and mutual blaming and verbal abuse.  Historically, the parents have demonstrated a lack of capacity to regulate their emotions and to resolve conflict in a meaningful manner.  There have been no family violence reports since December 2017. 

13. In those circumstances, it cannot be said that the presumption is rebutted and, indeed, I do not particularly take anybody to suggest that that is so.  But in any event, in my view, the submissions of the Independent Children’s Lawyer are correct.  I note that at paragraph 97, the family report recommended that the consideration of equal shared parental responsibility.

14. In my view, the submissions of the Independent Children’s Lawyer as I have just said are correct, but if the father wishes for this to work, in my view, he will need to be more conscious than, perhaps, he has been, that parental responsibility is not some sort of boon to the parents to be fought over to their advantage, it is an obligation to deal with matters in the best interests of the children.  Accordingly, I propose to make the order sought by the Independent Children’s Lawyer and the father as to parental responsibility upon release from jail.

15. The next matter is the question of how much time the children spend with the father while he is in jail.  The mother wants to reduce Zoom time and refers to the prospect of sleepovers and other social engagements and the like interfering with the Saturday morning Zoom time, particularly bearing in mind the children’s age with X now 11 and a-half and Y now nine.  There is force in that submission.  But, perhaps, I can make this observation.  Once again, the Independent Children’s Lawyer is correct to submit that there is no reason why sleepovers could not be on some other night.  And more particularly, at paragraph 61 of the family report, the following is said:

    X reported via chat that she loves spending Zoom time with her father, particularly, being able to see his face and show him her artwork. 

16. Now, there is a negative side of that about talking about lawyers that the father has just got to cut out completely.  But that is how X, in particular, saw it.  But the order should remain as it is and, indeed, as it is in the proposal that is before me from the father, there should be weekly Zoom time at 9.15.   And I accept the submissions made about telephone time, also.  It should move to biweekly, the submissions make sense.  But I cannot emphasise too strongly that the order for non-discussion of adult matters which is by consent is to be strictly adhered to.  Trying to involve the children in adult issues in this way is utterly reprehensible and must stop now, once and for all.

17. So far as time is concerned once the father is released from jail, the mother’s position is that there should, at least in the start of the matter, be none and that the father should be put to making an application.  The position of the father is that is should go back to what it was before he was incarcerated, being Saturday 9 am till 7 pm and the Independent Children’s Lawyer posits a smaller amount of time from 10 am till 1 pm.

18. At paragraph 62 of the family report, the reporter noted:

    When asked her feelings about her father being incarcerated, X wrote, “First of all, he has to complete his consequences.”  She added, “I miss him so much.”  When asked about the time she previously spent with her father, X indicated her feelings by giving a two thumbs up signal.  When asked more about this, she reported that she and Y were able to have sleepovers and have dinner with her father, “I hope we can go back to sleepovers after he is out of jail.”  X reported that her father is good at cooking, particularly lasagne. 

19. I should go back a moment and say I did quote from what X had to say about Zoom calls, but it should be noted that Y’s view was far less enthusiastic and that is reported at paragraph 67 of the family report.  I have obviously had regard to that, but I note the submissions made about the Independent Children’s Lawyer’s to the force to be given to the children’s views in circumstances where they might be thought to be overly aligned with that of the mother.

20. It is clear that there should be time when the father comes out of jail.  But his notion that it should forthwith revert to what it was before ignores the obvious matter raised by the Independent Children’s Lawyer, namely, that things are not quite now the same as they were.  There will have been an extensive period of disruption.  It is not known whether or not the father’s release will take place as soon as 2022 although, no doubt, he would very much hope that that is so.  That is a matter for other authorities. 

21. But I note from the judgment of Tinney J that there were matters before him which had arisen after the offences that were then dealt with and it is by no means clear one way or the other whether there are or are not further charges outstanding.  Were this to be the case, the prospect of early parole might recede very significantly and the gap in time, obviously, would be all the greater.  But even if it is only to 2022 it would be quite a substantial period of time and, indeed, for no one would that be more obvious that the father himself, who is bearing the brunt of his incarceration.

22. The next issue is the issue of the children’s name.  It needs to be remembered that all the authorities lay emphasis on that fact that this is about the best interests of the children, not about the desires of the parents.  As I have said, the children are now almost 11 and 8.  There are likely, at that age, to be issues of identification, the children are becoming more grown-up and more aware of their world. 

1. I accept that there is no compelling evidence in the affidavit material that I have been able to find as to the sort of things that are normally said to support a change of name such as distress on the child at being known by a different name than a parent or issues of identity and the like.  But the Independent Children’s Lawyer supports a hyphenation of the name and I’m in the same position.  I can see no valid reason why that not ought to occur.  The children ought to have a direct link to each of their parents in this way.  It does not exclude the father or the mother, but it gives the children a kind of legal expression, so to speak, of the reality of their current and ongoing circumstances and I propose to make that order as sought by the Independent Children’s Lawyer.

2. The next and, I think, final issue is the question of changeover.  The father seeks that changeover be at the parties’ homes.  With respect, that’s unrealistic where we have, at the very least, no idea as to where his home is going to be or when.  Furthermore, if the mother is scared, she is scared.  It is her application to have a police station.  It really does not matter whether that perception is correct or not.  What matters is its existence.  I accept the submissions of the Independent Children’s Lawyer, particularly in circumstances where the children know the father is in jail, to continue with the police station has unattractive and generally inappropriate associations.  But the way to change this is for the father to present to the mother in a fashion that means she is no longer as apprehensive as she presently is.  I propose to make the order that the mother seeks in relation to changeover.

3. I think, that’s the entirety of the matters that were up for discussion.  I will take you through the minute in front of me so you can all mark it off and have exactly what I have got.  The orders 1, 2, 6 remain exactly as they are. Order 7(a) remains as it is, 7(b) is changed to be simply, “(b)(i) Each alternative Sunday from 10 am until 1 pm.”  The subclauses numbered 1 and 2 are deleted.  Order 8, the father’s proposal, is deleted, and the mother’s remain.  And I note that, by consent, the last sentence of notation 2 is being deleted.

4. I would conclude, again, by saying that this is an unusual and, indeed, unique set of circumstances.  I have done the best I can to bring as much certainty as I can to the parties bearing in mind the various limitations to which I have referred and I would hope that in the intervening period, both parties turn their minds again to the material in the family report which has reasoning that it is likely, if approached with an open mind, to be highly beneficial to the children, which is what this is really all about.  It would also benefit the parents, but the benefit to them is the benefit that flows through to the children.

5. I will have these reasons for judgment transcribed and edited from the transcript and forwarded to the parties as soon as possible.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated: 12 April 2021