Edinger & Duy
[2022] FedCFamC1F 498
Federal Circuit and Family Court of Australia
(DIVISION 1)
Edinger & Duy [2022] FedCFamC1F 498
File number(s): PAC 4543 of 2020 Judgment of: HANNAM J Date of judgment: 14 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - Bifurcation of proceedings – Where father seeks the parenting and property proceedings are dealt with separately – Where the application is dismissed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) R 10.10 Division: Division 1 First Instance Number of paragraphs: 53 Date of last submissions: 14 March 2022 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Pertsoulis Lawyers Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 4543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDINGER
Applicant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
14 JULY 2022
THE COURT ORDERS THAT:
1.The father’s application that the parenting proceedings be bifurcated from the property proceedings is dismissed.
2.The proceedings are expedited.
3.The proceedings are listed for hearing case management on 24 August 2022 at 10am by Microsoft Teams.
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).
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 by this Court under the pseudonym Edinger & Duy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
The parties (“the father” and “the mother”) are in dispute about the future parenting arrangements for their only child, a son aged six (“the child”), and a fair adjustment of their property interests arising from the breakdown of their eight-year marriage.
The father now seeks an order, which the Independent Children’s Lawyer (“ICL”) appointed to the proceedings supports, that the proceedings be bifurcated so that the parenting aspect of the dispute is given priority over the parties’ property matters. The mother opposes the father’s application.
The question for me to determine is whether it is appropriate in the circumstances to bifurcate the proceedings.
Background
The mother who is 44 and the father who is 47 began living together in 2010 and were married in 2012. At that time the parties lived in a South-East Asian country where the mother was born and their household included a child of the mother’s previous relationship who was then aged five.
In 2015 the mother gave birth to the parties’ only child. The parties subsequently relocated to Australia, the father’s country of birth, in 2019.
The parties separated in August 2020 and the following month the father filed an application in the Federal Circuit Court (as it was then known) seeking urgent parenting orders in circumstances where the mother was living in a hotel room with the child, was not sending the child to school and had informed the father that she intended to return to the South-East Asian country of her birth with the child.
On the first return date on 10 September 2020 orders were made requiring the mother to file a Response, supporting affidavit and Notice of Risk and the matter was readied for a possible interim hearing on the next occasion.
At the following court event on 22 October 2020 an order was made that the parties attend upon a Family Consultant for the purpose of a Child Inclusive Child Conference and further orders were made requesting that the Department of Communities and Justice (“the Department”) provide a personal history summary relating to the child. Police were also requested to provide to the Court any documents relating the safety, welfare or wellbeing of the child. It was noted at that Court event that the father pressed his application for interim parenting orders be heard on an undefended basis and that the mother and child were at that stage living in a refuge and the child had begun attending a new school.
On 7 December 2020 an ICL was appointed and orders were made providing that the child spend two hours with the father supervised in the community twice per week. The interim hearing was otherwise adjourned until February 2021.
On 27 January 2021 the Child Inclusive Conference Memorandum was released to the parties and the ICL.
Following a further interim hearing on 4 February 2021, orders were made providing that the child live with the mother and spend time with the father each alternate weekend and one weeknight in the intervening week with changeover to occur at school or at a police station if a non-school day (“the February 2021 orders”). Orders were also made requiring the father to undertake random CDT blood testing at the request of the ICL and he was restrained from consuming alcohol 12 hours prior to and during the child’s time with him. Leave was also given to the ICL to relist the proceedings if the father returned a blood test result indicating “heavy alcohol consumption”. The parties were also restrained from physically disciplining the child, denigrating the other parent within hearing of the child and discussing the proceedings with the child. The parties were ordered to complete a parenting after separation course.
Two weeks after interim hearing, on 16 February 2021, the mother through her solicitors notified the father’s solicitor that the child had reported observing the father kissing and having sex with a female while in the father’s care. Approximately two weeks later, the mother caused a further letter to be sent to the father’s solicitor informing him that a female person had fondled the child’s penis while in the father’s care.
On 16 March 2021 the mother filed an Application in a Case seeking that the February 2021 orders in relation to the child’s time with the father be suspended and that the child spend supervised time only with the father. On 30 March 2021 the proceedings were subsequently transferred to this Court where they have subsequently been included in the Magellan Program[1].
[1] The Magellan program is a fast–track case management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 21 May 2021 the Magellan Report[2] dated 13 May 2022 was released to the parties.
[2] A Magellan Report sets out the involvement of the Department with the family.
On 4 June 2021 the mother filed an Amended Response to Final Orders in which she sought orders in relation to the property of the parties for the first time. The mother sought on a final basis that the father pay her $1000 per week by way of spousal maintenance and that the parties’ property interests be divided so that she receive 70% and the father receive 30%. In relation to parenting, the mother sought that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.
At a court event on 28 July 2021 all parties agreed that the orders of 4 February 2021 were in the best interests of the child and it was confirmed that those orders were to continue with the child’s time with the father to recommence the following weekend. Further orders were made requiring the father to ensure the child is not left alone in the presence of his partner and each party was restrained from engaging the child in any therapeutic intervention including school counselling and restrained from discussing or allowing any third-party to discuss the allegations of sexual abuse with the child.
On 16 September 2021 the father filed an Application in a Proceeding seeking urgent interim orders that the child live with him and spend supervised time with the mother for two hours per week. He deposed in his affidavit filed in support of the application that the mother had reported further allegations of sexual abuse of the child to police and the Department which had resulted in the child being interviewed by the Child Protection Unit and the father and his partner also being interviewed by police. The father further deposes that at this time the mother again ceased making the child available to spend time with him in accordance with the February 2021 orders.
On 26 October 2021 the father’s Application in a Proceeding was heard by me and on that day the orders of February 2021 were again confirmed. In addition to confirming the existing arrangements, as the mother had not been making the child available for time with the father, orders were made facilitating the child spending additional time with the father that week. Orders were made restraining the mother from attending school to collect the child that day and each day that week and instead the father was to collect the child from school and was to return the child to the mother’s care by delivering him to school the following Monday. Leave was given to the ICL to provide a copy of the orders made on that day to the Department and to police and the ICL was also given leave to relist the proceedings before me in the event the mother presented the child to either the Department or police. On that day it was also ordered that a Magellan Family Report be prepared and that the matter be relisted following the release of that report.
On 24 February 2022 the Magellan Family Report dated 1 February 2022 was released to the parties in Court. Following the release of the Family Report all parties requested that trial directions be made however it became apparent during the court event that the financial aspect of the proceedings was not ready for final hearing. Consequently, the father made application that the proceedings be bifurcated which was supported by the ICL but opposed by the mother. All parties agreed that the issue of bifurcation could be dealt with in chambers upon receipt of written submissions.
Despite orders being first made for the father to file a Reply to the mother’s Amended Response outlining the orders he sought in relation to the division of the parties’ property interests in August 2021, the father filed an Amended Application for Final orders outlining the orders he sought in relation to property for the first time on 10 March 2022.
At a court event before a registrar on 11 March 2022 orders were made for financial disclosure and for the parties to attend a private mediation in relation to the property dispute. That mediation took place in May 2022 and it was noted on the Certificate of Dispute Resolution that valuation and other significant issues remained in dispute.
At a further court event on 20 May 2022 orders were made with the consent of the parties for the property of the parties to be valued by an expert. Those orders make clear that the property interests of the parties, which is to be valued, consists of two properties in Australia which are owned by the father’s self-managed superannuation fund and one property in the South-East Asian country.
On 28 May 2022 the parties were divorced.
On 17 June 2022 it was noted by a registrar that a joint letter of instruction had been sent to the proposed valuer in relation to the two Australian properties but no joint letter of instruction had yet been sent to the proposed valuer in the South-East Asian country. However, it was also noted that the parties had made contact with the proposed valuer who advised that a valuation report could be produced within five days of payment by the parties. At that court event the parties were ordered to attend a further private mediation which is scheduled to occur in October 2022.
The application
The applicant father relies on the Magellan Report and on the Family Report in support of his application that the proceedings be bifurcated.
The Magellan Report – 13 May 2021
The Magellan Report outlines that between 2 September 2020 and 15 April 2021 the Department received seven Risk of Significant Harm reports and five non Risk of Significant Harm reports in relation to the child. These reports varied in content and included allegations of the child witnessing domestic violence perpetrated by both the father and the mother, allegations of sexual abuse perpetrated by the father and his partner and varying allegations of neglect, psychological and physical abuse perpetrated by the father.
In February 2021 the Department received multiple reports alleging that the child had witnessed the father having sexual intercourse with his partner including that the child sat on the bed and his cheek was “feathered” by the father during intercourse and a further report that the child had been locked in a bathroom with the father’s partner who was wearing no underwear and who “play(ed) with [the child’s] nuts”.
On 24 February 2021 the child was interviewed by police attached to the Joint Child Protection Response Program[3] (“JCPRP”) in relation to the allegations of sexual abuse. The child did not make any disclosures of abuse and on 26 February the criminal investigation into those allegations was closed.
[3] The Joint Child Protection Response Team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
On 26 April 2021 the child was interviewed by Departmental caseworkers at his school, with his school principal participating as a support person. The child again made no disclosures of sexual abuse.
On 10 May 2021 the Department completed an alternate Assessment relating to the safety and future risk to the child in which they assessed that the child is safe in the care of both the mother and father and that no imminent dangers were identified in either household. The Department did however substantiate a risk of psychological harm to the child based on the following:
-[the Department] are concerned that the antipathy between [the mother] and [the father] around custody of [the child] is likely to have an increasingly negative impact on his well-being.
-[the child] was observed to frequently state that his mother told him to state things.
-[the child] appeared to make statements about his father’s partner [name omitted] that he cannot explain, does not understand and which are not consistent with his answers to general questions about her.
-[the department] are worried that the way [the mother] is talking about [the father] to [the child] or in his hearing, will result in a disruption in [the child]’s attachment with his father.
-[the department] are worried that the constant, unexpected changes to where [the child] stays each week will result in his feeling insecure and anxious about what is happening for him.
-[the department] are worried that if [the child]’s parents continue to focus on the Family Law Court arguments, rather than supporting [the child] to have positive relationships that nurture his attachment with both his primary caregivers and do not require him to choose between them, the consequences for [the child]’s psychological wellbeing will be significant and harmful.
It was assessed that the level of future risk to the child is “moderate” while conflict between the parties continues.
The Family Report – 1 February 2022
The parties and the child were assessed by a Family Consultant in December 2021. At that time the orders of February 2021 were in place (as they remain) which provide that the child live with the mother and spend time with the father each alternate weekend from after school Friday until before school Monday and on one weeknight in the intervening week. It was noted by the Family Consultant that the time the child has spent with the father had been irregular between February and October 2021 but the parties appear to have followed the orders since October 2021.
The father submits that in summary, the Family Consultant indicates that the child is at risk of harm whilst in the mother’s care. In particular, the father relies upon the following extracts from the Family Report:
82. [The mother]’s allegations regarding [the father] and [the father’s partner] are concerning, and appear to be firmly believed by [the mother]. It seems that these have been investigated by Child Protection and police, and that they have not been substantiated, however, [the mother] retains the belief that the investigations have not been sufficiently extensive, and that [the child] is not safe in [the father]’s care. This places [the child] in an invidious position where he has been subject to a number of interviews, and has formed the stated view that [the father] “does horrible things to me,” however, was unable to particularise any of these things. [The child]’s narrative ability was such that it is difficult to imagine that he was able to tell [the mother] what she recounts in her statement, and it may be the case that [the mother] has inadvertently expanded his narrative into something more troubling…Certainly, [the child]’s demeanour with [the father] did not suggest that he was uneasy with him or fearful of him.
…..
90. The advantages to [the child] of living with [the father] would be the continuation and development of his relationship with [the father], and the possibility that he would, ultimately, be able to have a relationship with each parent. It may also offer [the child] freedom from ongoing investigations and subsequent interviews, as well as possible protection from ongoing denigration of the other parent….
….
93. It is recommended that, if the Court finds that [the child] is not at risk from either abuse of (sic) exposure to excessive alcohol consumption by [the father], that he lives solely with him for a period of three months. After this time, it would be recommended that he spend a day with [the mother] each weekend, providing that he is not exposed to further questioning about, or denigration of, [the father].
The father contends that since the preparation of the Family Report, the mother has forwarded to him a transcript of a record of interview she conducted with the child. While the father provides no particulars about when the interview was said to have occurred, it was noted at the court event on 24 February 2022 that the father contends that in December 2021 the mother provided a transcript of an interview between herself and the child relating to her allegations of abuse by the father to the father’s brother. It is unclear if the father is referring to this interview or to a further interview of the child by the mother. At the February court event the mother was ordered to file an affidavit within 28 days setting out any questioning or interviewing of the child in relation to allegations made in these proceedings but she has not done so.
It is submitted by the father that on 7 March 2022 he and his partner were called to a Police Station to be interviewed in relation to physical abuse allegations raised by the mother.
The father submits that as the Family Consultant has indicated that there is a real risk for the child in the mother’s care and as the mother has not stopped making allegations against the father and his partner and has continued to involve the child in such reporting then the Court must hear the parenting dispute as it is in the best interests of the child.
The ICL supports the father’s position and similarly holds concerns about the risk of physical and/or psychological harm to the child if the final hearing were to be delayed. The ICL does not in her submissions particularise the risk of physical harm she says is posed to the child but it can be assumed she is referring to the father’s allegations of physical violence perpetrated by the mother against him in the presence of the child which he reported to the Family Consultant. The father informed the Family Consultant that the mother had physically assaulted him on a number of occasions and that he has been “covered in bite marks and scratches” and in particular he recounted an event in January 2019 where he called police as the mother was “out of control”. The father reported that on this occasion the mother smacked the child and the child required reassurance from the father.
Law and discussion
Rule 10.10 of The Federal Circuit & Family Court of Australia (Family Law) Rules 2021 provides:
10.10pplication for Separate Decision
(1)A party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the proceeding; or
(b) make a trial unnecessary; or
(c) make a trial substantially shorter; or
(d) save substantial costs.
(2)An application under this rule must be made by filing an application in accordance with the approved form.
It is accepted that the Court clearly has the power to order that the parenting and property proceedings be bifurcated.
It is submitted on behalf of the father, and supported by the ICL, that in the circumstances of this case, where there is significant risk to the child as identified by the Family Consultant, that the proceedings should be bifurcated. The ICL also submits that if the proceedings are not bifurcated then the ICL would be present in the property proceedings at the cost of Legal Aid.
The mother opposes the father’s application for bifurcation and relevantly submits that bifurcating the proceedings would be contrary to core principle 2 of the Court’s Family Law Case Management Central Practice Direction which provides:
CORE PRINCIPLE 2 – Parties’, lawyers’ and the Court’s obligations and overarching purpose
3.3 The overarching purpose to be achieved is to facilitate the just resolution of disputes:
•according to law; and
•as quickly, inexpensively and efficiently as possible.
3.4 The overarching purpose includes the following objectives:
•the just determination of all proceedings before the Court;
•the efficient use of the judicial and administrative resources available for the purposes of the Court;
•the efficient disposal of the Court’s overall caseload;
•the disposal of all proceedings in a timely manner;
•the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
3.5 This Central Practice Direction and the Family Law Rules must be interpreted and applied in the way that best promotes the Court’s overarching purpose and prioritises the best interests of children.
The mother submits that bifurcating the proceedings would give rise to two sets of proceedings which would in turn add to the Court’s workload and to the parties’ costs. The mother also submits that the result of the parenting proceedings will significantly impact the property proceedings in circumstances where the father seeks to be the primary carer of the child and the mother seeks spousal maintenance on a final basis, and as such it would be inappropriate for the proceedings to be separated.
I accept the submissions of the father that there is a real need for the parenting dispute to be heard and determined on a final basis. The Family Consultant has opined that there is a risk to the child “in him experiencing frequent police and child protection interviews” and there is “the possibility that he may form the unjustified view that he is not safe in [the father]’s care”. It is highly concerning that the mother has involved the child in reporting of allegations and interviewing by police and Departmental officers on multiple occasions from September 2020 onwards, and as recently as March of this year. The mother has done so notwithstanding that on each occasion she has been informed by police that the child did not disclose any information that would lead to criminal charges and that the Department has assessed the child as “safe” in the father’s care. The mother informed the Family Consultant that the investigations “have not been sufficiently extensive” and the child is not safe in the father’s care. Given the mother’s views as reported to the Family Consultant, it can be assumed that the mother will continue to make allegations against the father and his partner to the relevant authorities and the child will continue to be involved in further interviewing until the proceedings are heard and determined on a final basis.
It is also concerning that the mother has in the past used the allegations against the father as reason to withhold the child from spending time with the father and it was noted by the Family Consultant that the child spent irregular time with the father between February 2021 and October 2021. The father reports that the mother made allegations of physical abuse of the child by the father in March 2022 however it is not clear if the mother also withheld the child at this time. In her Family Report, the Family Consultant explained that:
Relationships generally rely on reasonable constancy of contact, and this is especially true of young children, who need to be able to ‘keep in mind’ the absent parent if their attachment to them is to remain. The infrequency of contact between [the father] and [the child] in recent time places at risk the stability and security of their relationship.
When interviewed by the Family Consultant, the child spoke of the father in a derogatory fashion which the Family Consultant opined would “tend to suggest that [the child] has been privy to [the mother]’s thoughts and feelings in relation to [the father] and…wishes to affirm and support his mother’s viewpoint”.
It is clear that while the proceedings remain ongoing and the child is living primarily in the mother’s care, there is real risk that damage is being caused to the child’s relationship with the father due to the interruptions in the child’s time with the father and the child being exposed, whether inadvertently or consciously, to the mother’s views of the father. If the Court ultimately finds that there is no substance to the allegations of abuse contended for by the mother and that the child does receive a benefit from having a meaningful relationship with the father, if there is substantial delay in the final determination of the hearing there may be little foundation for orders to be crafted to foster that meaningful relationship.
The Family Consultant recommends that if it is found by the Court that the child is not at risk in the father’s care that the child live with the father on a final basis and after a period of three months spends time with the mother one day each weekend. While the Family Consultant’s evidence at this stage it is untested, she opines that this arrangement may allow the child to ultimately have a relationship with each parent. On the other hand, the Family Consultant also opines that if the child remains exposed to the parties’ relationship “which is characterised by conflict, mistrust and acrimony” then the child “will ultimately find it very difficult to maintain relationships with each of his parents” and may choose “a relationship with one parent over the other as a way of managing this burden”. It is clear that the timely resolution of this dispute is necessary to ensure that the child has the opportunity to maintain a meaningful relationship with each of his parents.
In my view there is a real need for the parenting proceedings to be determined with expedition and the appropriate way to realise such an outcome is to make an order to this effect for the entire proceedings.
Given the judicial resources available to this Court and in particular this registry, ordering that the proceedings be expedited will achieve the desired result more effectively than bifurcating the property and parenting proceedings and determining the parenting dispute first (which is not expressly sought by either party but can be assumed from the tenor of the father’s submissions). Even if the proceedings are bifurcated it will still be some months before final hearing of the parenting dispute can be fixed. In these circumstances, it can be expected that the parties will have attended to the outstanding valuation issues in relation to their three properties, and the property dispute will in any event be also ready for final hearing.
It has been identified by both the Family Consultant and the Department that harm will be caused to the child while the parents remain in conflict and in this context it is necessary that the litigation is brought to an end on a final basis in respect of both the parenting and property dispute.
Additionally, bifurcating the proceedings would significantly increase the costs of litigation for both the parties and the Court which would be inappropriate as the property dispute is not complex. It should be noted that the parties are to attend private mediation in October 2022 and there is some chance that the property dispute may settle at that time.
Conclusion
As explained, there is real need for the parenting dispute in this matter to be determined urgently on a final basis. However, given the judicial resources available it cannot be said that the proceedings would be heard and determined more quickly if the proceedings were bifurcated rather than heard together. In the foregoing circumstances, where there is no practical advantage to bifurcating the proceedings and the necessary urgency can be addressed by ordering expedition of the entire dispute I dismiss the father’s application that the proceedings be bifurcated.
The parties are to be encouraged to approach their dispute in a child-focused manner which includes doing all things necessary to ready the property dispute in accordance with directions so that the proceedings can be listed for final hearing in their entirety on an expedited basis at the appropriate time.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 14 July 2022
0
0
0