Decker and Thames

[2020] FamCA 527

FAMILY COURT OF AUSTRALIA

DECKER & THAMES [2020] FamCA 527

FAMILY LAW – CHILDREN – interim orders – application by the father for time spending – high parental conflict – allegations of domestic violence – best interests of the child.

Family Law Act 1975 (Cth), ss. 60B(1), 60B(2), 60CA, 60CC(1), 60CC(2), 60CC(3)

APPLICANT: Mr Decker

RESPONDENT: Ms Thames

INDEPENDENT CHILDREN’S LAWYER: CN Family Law

FILE NUMBER: ADC 2187 of 2018

DATE DELIVERED: 8 May 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 7 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Read of Counsel

SOLICITOR FOR THE APPLICANT: Stanley & Co Lawyers

COUNSEL FOR THE RESPONDENT: Ms Dickson of Counsel

SOLICITOR FOR THE RESPONDENT: Culshaw Miller Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Hemsley of Counsel

INDEPENDENT CHILDREN'S LAWYER: CN Family Law

Orders

1. That paragraphs 1 to 8 and paragraph 12 of the orders sought in the application in a case filed by the father on 11 March 2020 be dismissed.

2. That on or before 15 May 2020 the father be at liberty to file and serve a further amended initiating application.

3. That on or before 15 May 2020 the mother deliver the child X’s passport to the Adelaide Registry of the Family Court of Australia with same to be held at the Registry until further order.

4. That the said application in a case be otherwise dismissed.

5. That the response to the said application in a case filed herein on 8 April 2020 be otherwise dismissed.

6. That costs generally with respect to both applications be reserved.

7. That this matter be listed for trial for 10 days commencing at 10:00am on 17 August 2020 and continuing at 10:00am on 24 August 2020.

8. That trial directions be adjourned to 1 June 2020 at 10:00am with Counsel to attend.

9. That on or before 25 May 2020 Counsel for each party provide to the other of them and to the Associate to Justice Mead a trial plan to include the following:

   (a)       A list of all affidavits they rely upon;

   (b)A schedule of witnesses to be called by each party and the Independent Children's Lawyer and the estimated time from cross-examination by the other party and the Independent Children's Lawyer; and

   (c)       A draft list of issues for trial as at 25 May 2020.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2187 of 2018

Mr Decker

Applicant

And

Ms Thames

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes back before the court with respect to an Application in a Case filed by the father on 11 March 2020 and a Response thereto filed by the mother on 8 April 2020.

2. The matter, generally, was previously listed for trial in the week commencing 16 September 2019 and the week commencing 14 October 2019.  A total of 10 days had been allocated for the trial.  On 16 September 2019, the first day of trial, the parties entered into negotiations together with the Independent Children’s Lawyer and consent orders were entered into that day.

3. The terms of that consent order were that X was to live with the mother and that the parties were to jointly instruct Ms GG to undertake reunification therapy as between X and her parents, in particular with her father.  There was provision for material to be provided to Ms GG and in the event that she was unavailable they would agree upon another therapist, and indeed did so with Ms HH.

4. The parties were to share equally in costs for X and pay their own costs in relation to any attendances on the expert.  There was a notation that the mother would continue to see her psychologist, Ms MM.  The father would continue to see Dr D.  The parties were going to authorise the expert therapist to speak with their respective therapists and to any other medical practitioner or allied medical practitioner to whom the reunification therapist should reasonably request to speak.  To the extent that the reunification therapist would recommend that either party engage in further therapy in addition to the therapy that they are currently undertaking, they were each to comply with those recommendations.

5. At the completion of the therapy with the reunification expert there was to be a report detailing the progress of the therapy, the response of each of the parties and of X, any recommendations for the parties to undertake further therapy either individually or jointly and, any recommendations for X’s time with her father moving forward.  X was to spend time with the father in such a manner and subject to such conditions as proposed by the therapist as part of the reunification therapy.  On the provision of her report the parties were to attend upon a family dispute resolution conference.

6. The consent order provided in paragraph 14 that paragraph 11 of the orders of 4 July 2019, 4 and 5 of the orders of 22 March 2019 and 4, 6 and 7 of the orders of 7 March 2019 continue until further order.  Furthermore, a Contravention Application dismissed.

7. As noted, Ms GG was not available for the reunification therapy and therefore, as agreed between the parties, Ms HH prepared two reports.  One was described as a summary report and the second more fulsome report annexed to the Affidavit of the Independent Children’s Lawyer Ms Nelson, filed on 26 March 2020, outlined that the process commenced by way of an appointment with the father on 22 October 2019.

8. Commencing on 15 November 2019 and concluding on 10 February 2020, the mother attended six appointments with X and one appointment on her own.  The summary report of Ms HH dated February 2020 was received by the mother’s solicitor on 17 February 2020 and annexed to the Affidavit of Ms JJ filed on 19 February 2020.

9. The report contained a recommendation that continuing with the reunification process would be to the detriment of X’s wellbeing and further, that the issue of contact between X and her father should be reviewed after outcomes with respect to the mother’s allegations.  There were also two other recommendations.  One, that the mother would benefit in continuing with individual therapy and two, that the father would benefit in engaging with Mr KK or Mr LL with a view of the mother being included in that therapy.  The mother last attended on Ms HH with X on 10 February 2020, which was a few days before the report was prepared.

10. When the orders were made on 16 September 2019 there was a directions hearing listed before me on 4 March 2020.  No new trial date was ordered in circumstances where the outcome of the reunification process was unknown at that time.  The parties and the Court are now aware of the outcome of that process to date.

11. The mother continues to allege a history of domestic violence, referred to in my judgment of 4 July 2019, particularly as to the agreed facts.  Such facts were tendered in the Magistrates Court during Intervention Order proceedings culminating in the Intervention Order being confirmed with the consent of the father after several days of trial.

12. The mother’s therapist, Ms MM, says in her report dated 4 March 2020 and annexed to the Affidavit of Ms JJ filed on 10 March 2020, that she is unable to effectively assist the mother in a therapeutic sense until findings are made by this Court as to the allegations made by the mother.  This is because, in her expert opinion, the mother’s attitude is informed by her narrative of being subject to domestic violence from the father, not only in the physical sense but also including coercion and control exercised by the father.  Simply put, Ms MM says she cannot tell the mother to “move on” nor reality‑test her fears if those fears are well-founded.

13. The father denies all of the mother’s allegations.  Paraphrasing, Ms HH in her report says that reunification is currently being attempted in circumstances where both parties remain at “loggerheads”, where the mother has a rich narrative with respect to domestic violence allegations informing her behaviour and where X is dependent on the mother as her primary caregiver.  Accordingly, X cannot help but be exposed to the mother’s fears and attitudes which is a position that, in the report, would seem to be accepted by the mother.

14. The father denies all of the mother’s allegations as to concerns about his mental health, drug use and engagement in family violence towards her, notwithstanding what appear to be some current concessions made in the Magistrates Court in the Intervention Order proceedings and referred to in my judgment of 4 July 2019.  The mother has continued with therapy as recommended by the family report writer Ms V on page 40 of her report dated 18 February 2019, as reported by the mother’s therapist Ms MM and previously referred to herein.  The father says he has continued to attend on his psychiatrist, Dr D, however there is no report to date to assist the Court with respect to issues being canvassed with the father or any result of that therapeutic input.

15. On 11 March 2020 the father filed an Application in a Case.  Paraphrasing the orders sought in that application, they were as follows:

    ·That X live with the mother;

    ·That for an eight-week period X spend time with the father on Mondays from 9.00 am until 11.30 am and on Saturdays from 3:30pm until 6:00pm at the home of the maternal grandparents under the supervision of Mr A;

    ·Thereafter, X spend time with the father on Mondays from 9.00 am until 11.30 am and Saturdays from 3.30 pm until 6.00 pm without restrictions as to location, under the supervision of Mr A, with handover to occur at the home of the maternal grandparents, between the father and the maternal grandfather;

    ·That whilst spending time with X in the maternal grandparents’ home they absent themselves;

    ·That Mr A complete one intake session with the mother and X prior to the commencement of that time;

    ·That the parties share equally in the costs of Mr A, but, that if time spending as ordered does not occur, the mother bear the sole cost;

    ·That the parties jointly instruct Ms HH, at their joint and equal expense, to undertake reunification therapy and the mother do all things necessary to facilitate that, including having another person facilitate the attendance of X at Ms HH’s office;

    ·That the mother undergo a psychiatric evaluation by Dr E;

    ·That he be at liberty to file and serve a third Amended Initiating Application;

    ·That various existing orders of 4 July 2019, 22 March 2019 and 7 March 2019 continue until further order; and

    ·That the mother provide X’s passport to the Adelaide Registry of the Family Court of Australia with the passport not to be released to either the mother or the father without the written consent of the other of them.

16. He also sought that the mother provide evidence to him of how she became aware of the private Application for Intervention Order – a step that the father took in the Magistrates Court.

17. In the mother’s Response filed on 8 April 2020 she sought orders that the application be dismissed and the father pay her costs.

18. The father has not seen X since April 2019.  It is his case that the mother has not cooperated with the reunification therapy, which he says he entered into in good faith.  He accuses her of delaying appointments for the therapeutic process, undermining the process and, effectively, being determined to prevent X having a meaningful relationship with him.

19. The mother says that the application should be dismissed and the matter proceed to trial.

20. Counsel for the Independent Children’s Lawyer was not supportive of the orders sought by the father in his Application in a Case but submitted that X should be having a relationship with her father and, that a trial would not resolve anything or assist X’s wellbeing in circumstances where the parties are so entrenched in their beliefs and their ongoing dispute.

21. Turning to the Family Law Act 1975, section 60B outlines the objects of the part of the Act relating to parenting issues. Those are that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child and, to ensure that children are protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Subsection (2) of section 60B outlines some of the principles underlying the objects such that children have the right to know and be cared for by both their parents.

22. Pursuant to section 60B(2)(b), children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development. Section 60CA tells the Court that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC informs the Court as to how a child’s best interests are to be determined and tells the Court what factors are to be taken into account, referencing both primary and additional considerations.

23. The primary considerations are set out in section 60CC(2) of the Act and are:

    (1)the benefit to the child of having a meaningful relationship with both of the child’s parents;

    (2)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

24. Section 60CC(2A) informs the Court that it is the protection from abuse, neglect or family violence that must take precedence over the benefit to the child of having a meaningful relationship with both parents.

25. It is the mother’s case, as set out in her more recent Further Amended Response, that X should not spend physical time with her father.  The mother says that she was subjected to domestic violence, both in a physical sense and, more particularly, in the sense of coercion and control during the period of her relationship with the father.  She says that X was present when various of those incidents and behaviours occurred and that, in addition, the father was physically violent to X.  The father denies all of those allegations.

26. The father is subject to an Intervention Order with the mother as the protected person.  As noted, the extensive proceedings occurred in the Magistrates Court with a total number of hearing days being approximately nine.  The mother was cross-examined at length for several days and eventually, with the consent of the father, the Intervention Order was confirmed.  An agreed set of facts was tendered to the Magistrates Court where, on the face of it, concessions were made by the father as to issues of domestic violence.  In the circumstances of this case I am satisfied that is the most important factor that the Court must take into account in determining X’s best interests.

27. As to the additional considerations in subsection 60CC(3), the first relevant consideration, to my mind, is the nature of X’s relationship with each of her parents and any other persons, including grandparents or other relatives.  X has, at all times since separation, been in the primary care of the mother and it is the mother’s case that she was also the primary caregiver of X prior to the parties’ separation.

28. X’s primary dependency is on her mother.  In paraphrasing Ms HH’s report, she refers to the impact on X’s mental health of trying to live a reality that is different to that of her mother’s.  Ms HH refers to the very rich narrative firmly held by the mother as to issues of domestic violence.  Ms HH cautions against expecting X to navigate that very difficult pathway and recommends that a continuation with the reunification process is not in the best interests of X’s psychological wellbeing.

29. I am satisfied that X has an extremely close and dependent relationship on her mother.  There was certainly a period of time post-separation where there have been observations of X enjoying time with her father.  This includes time spent with him at the home of the maternal grandparents with the mother shortly following upon the parties’ separation and, on occasions when X spent time with him under the supervision of Mr A.  Mr A filed an Affidavit for the earlier trial proceedings where he annexed the very extensive volume of observations of interaction between X and her father.

30. As noted previously herein, there were certainly occasions when X enjoyed the interaction with her father, but there was certainly reference made by Mr A in his reports of the numerous occasions when X was reluctant to leave her mother or her grandparents to spend time with her father.  This was particularly post-April 2019 where there was approximately 10 or 11 effective failures to facilitate time, when X simply would not separate for the purpose of spending time with her father and exhibited great resistance to so doing.

31. I am satisfied at this time that X’s relationship with her father is fragile.  Even taking into account the thoughtful reasons of Judge Brown arising from the proceedings in March 2019 and the need for X to better secure her relationship with her father, I commented in my reasons on 4 July 2019 that at that time his Honour did not have available to him some of the material that was available to the Court in July 2019.  I expressed at that time my caution about how to best continue or improve X’s relationship with her father and, indeed, declined to make orders at that time and noting that at that interim hearing, a trial was pending some two months later.

32. As to the likely effect of any changes in X’s circumstances including the likely effect on the child of separation from either of her parents, I am satisfied that X has, in the main, resisted separation from her mother.  I take into account that she did separate from her mother to spend time with Ms HH on her own on one occasion.  On the next and last occasion that X saw Ms HH, the mother declined to facilitate Ms HH spending time with X on her own.

33. I am satisfied, taking into account the evidence of Mr A contained in his reports as to X’s reluctance to spend time with her father post‑April 2019, the concerns of Ms HH as to the impact on X’s wellbeing of continuing to persist in attempting reunification counselling and the mother’s ongoing trauma, that to accede to the orders sought by the father would not be, at this time, in X’s best interests.  I also say in relation to the orders sought by him that there is no evidence before the Court that the maternal grandparents would agree to the orders that he seeks with respect to time being taken at their home in their absence.

34. The father does not bring any evidence to the Court as to the availability or preparedness of Mr A to facilitate such time and the Court is already aware from Ms HH’s report that as a therapist, she does not consider that it is in X’s best interest to continue with the reunification process.

35. As to the capacity of each of X’s parents to provide for her needs including emotional and intellectual needs, I am satisfied that at this stage the mother is best suited to provide for X’s emotional and intellectual needs.  I recognise that X is, in all probability, exposed to periods of time in her mother’s care where her mother becomes, as described by Ms MM, hypervigilant and exhibiting signs of trauma.

1. I do not doubt that the above circumstance is not an ideal scenario for X but I am not satisfied that there is anywhere near the level of emotional connection between X and her father at this time that would suggest that time spent with him, even with a supervisor or in a therapeutic environment, could be considered to be in her best interests.

2. The most important factors are those covered in section 60CC(3)(j) and (k), that is, any family violence involving the child or a member of the child’s family, and if a family violence order applies, or had applied to a child or a member of the child’s family, any relevant inferences that can be drawn from the order, taking into account the various factors referred to.

3. As previously stated, there is an Intervention Order in place.  It is the issue of domestic violence, in its various guises, that is the nub of the matter that is now before the Court notwithstanding, the quite practical submission made by Counsel for the Independent Children’s Lawyer that a trial is unlikely to make the parties feel any different each towards the other or settle their tensions.  In circumstances where I am not able to find on an interim basis that it is in X’s best interest to accede to any orders for time spending sought by the father in his current Application in a Case, there is no other option open to the Court.

4. Ms HH kindly pointed out, and I paraphrase, that lawyers and judges have limited understanding about domestic violence and how best to deal with those issues and tensions between the parties, and that those issues are matters for a therapist.  The fact of the matter is when people can’t agree, they come to Court and if they do not agree, the only option is a trial.  It appears that is the only option in this matter.

5. I am not satisfied for the reasons I have given that it is in X’s best interests to accede to the orders sought by the father in paragraphs 2 to 6 of his Application in a Case.  It may be in X’s best interests to have a meaningful relationship with her father, but to my mind, the issues of family violence must be tested before findings can be made in that regard.  With respect to paragraph 1 of that application for an order for X to live with the mother, I say there is already an existing order in that regard, and it is not necessary to repeat same.

6. Turning to the remainder of the orders sought by the father, he also seeks an order that the mother undergo psychiatric assessment by Dr E.  I see no basis for that order to be made.  The mother regularly sees her psychologist, Ms MM.  Ms MM has expressed no concern as to the mother’s mental health generally.  She says that it is not impacting on her ability to care for X and she says that the hypervigilance and trauma responses are informed by the mother’s allegations and that those allegations need to be tested before she can determine how to assist the mother.  Further, she says she is not in a position where she can challenge the mother by way of “reality-testing” if, indeed, the mother’s allegations with respect to issues of domestic violence are well‑founded.  Taking into account those matters I decline to make that order.

7. In declining to make such order paragraph 8 of the application then becomes irrelevant.

8. Paragraph 9 seeks that the father being at liberty to file and serve a further Amended Initiating Application, an order I will grant in due course.

9. As to paragraph 10 of the said Application, it is the Court’s opinion that there is no need to repeat paragraph 11 of the order of 4 July 2019 or, paragraph 4 of the order of 22 March 2019 or, paragraphs 4, 6 and 7 of the order of 7 March 2019 as they are all orders “until further order”.  I note that paragraph 5 of the order of 22 March 2019 has already been discharged and was so discharged in my order of 4 July 2019.

10. As to the issue of X’s passport being lodged at the Adelaide Registry of the Family Court of Australia, I’m of the view that that order should be made.  There is no likelihood of the mother travelling overseas at this stage, in any event, if necessary, that matter can be argued at trial.  To my mind, however, it is one small source of agitation and irritation that might be resolved by the passport being here in the registry and only being released with the consent of both parties, with the understanding that if one or other of the parties opposed the release of the passport without good reason they may be at risk as to the costs of any application arising therefrom.

11. At paragraph 12 of the application the father sought that the mother provide evidence within seven days to him of how she became aware of the private Application for Intervention Order.  It was a private Application for an Intervention Order instituted by the father in the Magistrates Court.

12. He did so apparently without the knowledge of the mother and it was considered at some level in the Magistrates Court without any apparent involvement of the mother.  I am unaware of any basis or reason upon which the father could seek such an order.

13. For those reasons, I make the following orders.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 8 May 2020.

Associate:

Date: 1 July 2020