Fasham & Rina
[2022] FedCFamC2F 134
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fasham & Rina [2022] FedCFamC2F 134
File number(s): ADC 580 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – Parenting – where the final hearing is part heard – where both the parties cases have closed and only the Court Child Expert is to give evidence – where father filed an Application in a Proceeding during the course of final hearing – where father seeks various orders including for an observed interaction to take place between him and the three subject children of the proceedings – where the father has not seen or spent time with the children for over three years – where mother’s evidence under cross-examination presents a different version of events compared to that set out in her court documents – where the Court is concerned that there was no observed interaction between the father and the children in the two Family Reports prepared for these proceedings – where it is in the best interests of the children for there to be an observed interaction between the father and the children before final parenting orders are made. Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.69ZL, 69ZR, 69ZS Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 11 February 2022 Place: Adelaide Counsel for the Applicant: Ms Lindsay Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Ms Betro Solicitor for the Respondent: Andersons Solicitors Counsel for the Independent Children's Lawyer: Mr Frazer Solicitor for the Independent Children's Lawyer: Legal Services Commission ORDERS
ADC 580 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FASHAM
Applicant
AND: MS RINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
11 FEBRUARY 2022
UPON NOTING THAT the proceedings were conducted in person
UPON FURTHER NOTING THAT
- That counsel are currently conferring with respect to the List of Documents to be provided to Court Child Expert Ms B in anticipation of her evidence when the Trial resumes on 30 March 2022.
- Counsel will forward to the Chambers of Judge Dickson a List of Agreed Documents to be forwarded by the Court to Ms B by way of email no later than Friday 18 February 2022.
- The advice of the Mother this day given to this Honourable Court that the children attended at the school named by Counsel for the Mother referred to in a written advice given to the Court his day for Term 4, 2021 and will continue to attend at that school in 2022 in Victoria.
BY CONSENT OF THE MOTHER AND NOT OPPOSED BY THE FATHER THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.The children X born in 2010, Y born in 2012 and Z born in 2013 continue to attend at the school that they attended for the duration of Term 4, 2021 in Victoria.
2.The Mother be restrained and injunction granted restraining her from causing the children or any of them to attend at any other school than that referred to in paragraph 1 hereof without an Order of this Honourable Court and / or by prior written consent of the Father being first obtained.
THE COURT FURTHER ORDERS THAT
3.No later than 12:30pm on Monday 14 February 2022 the mother do deliver up the children X born in 2010, Y born in 2012 and Z born in 2013 (‘the said children’) to the Court Children’s Services at the Ground Level of the Adelaide Registry of the Federal Circuit and Family Court of Australia.
4.The mother shall thereafter immediately depart the Adelaide Registry building and is thereafter restrained by way of injunction from:
a.Re-entering the Court building unless and until advised by the Court Child Expert undertaking the report that she may re-enter in order to collect the children; and
b.Communicating with any of the said children by mobile telephone or any electronic device that any of the said children may bring with them to the appointment, or allowing any other person to do so, and she bound by such order until such time that she collects the children pursuant to paragraph 4(a) herein.
5.The mother be restrained and an injunction be granted restraining her from discussing these proceedings, or any allegations raised in these proceedings, with or in the presence of any of the said children, or allowing any other person to do so.
6.The mother provide her contact telephone number to the Court Children’s Service (Adelaide Registry) on [email protected] no later than 9:00am on 14 February 2022.
7.Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the Court Child Expert is directed to undertake an observed interaction between the father and the said children at the Court Children’s Service (Adelaide Registry) at 1:00pm on 14 February 2022 UPON NOTING THAT the period of such observed interaction shall be for a period of up to two (2) hours at the discretion at the Court Child Expert.
8.Pursuant to section 62G(5) of the Act, the father is at liberty to bring the paternal grandmother, Ms C, for the purposes of the observed interaction and Ms C is at liberty to be present and to interact with the children, subject to any further direction given by the Court Child Expert.
9.For the purposes of the observed interaction in paragraph 7 herein, the Court Child Expert is permitted to view the following materials from the court file:
a.A copy of these Reasons; and
b.The Family Reports of Court Child Expert Ms B dated 23 November 2020 and 16 August 2021.
10.The Court Child Expert do prepare a written addendum report for release no later than 28 February 2022 addressing the following:
a.The children’s reaction upon meeting with and/or spending time with the father and/or the paternal grandmother; and
b.A summary of the Court Child Expert’s observations of the interaction (if any) between the father and/or the paternal grandmother and the children; and
c.Any views expressed by the subject children in relation to their living and time spending arrangements.
11.Pursuant to section 62G(6) of the Act, in the event that the mother fails to comply with the orders made herein then the said Court Child Expert must report the failure to the Chambers of Judge Dickson forthwith.
12.All current extant interim applications be dismissed.
13.Each party bear their own costs of and incidental to the interim applications.
14.The Trial be adjourned part heard to 30 March 2022 at 10:00am (NOTING 1 day allowed) for the purposes of hearing evidence from the Court Child Expert Ms B.
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 a pseudonym Fasham & Rina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
There are reasons provided orally pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) as a result of the father filing an urgent Application in a Proceeding on 9 February 2022 at 4:39pm (ACT time).
The application was raised with the Court by the father’s counsel at approximately 5:30pm on 9 February 2022 at the conclusion of the court day. The father’s counsel outlined in broad terms the orders sought by her client for urgent determination prior to the mother returning to Melbourne when the Trial adjourned that day. The Court listed the father’s Application in a Proceeding for argument at 2:15pm this day so as to enable the mother and the Independent Children’s Lawyer to consider the material and for the mother to file responding documents. Argument has taken place before me this afternoon in relation to each of the parties’ respective interim applications.
The father relies on his Application in a Proceeding filed on 9 February 2022, supporting affidavit and two exhibits being correspondence between the legal representations. The mother relies on her Response to Application in a Proceeding and supporting affidavit filed on 11 February 2022. I have heard lengthy submissions from counsel and the Independent Children’s Lawyer. The mother and the Independent Children’s Lawyer oppose the father’s application.
BRIEF BACKGROUND
These proceedings concern three children namely X born in 2010, now aged 11 years, Y born in 2012 now aged 9 years and Z born in 2013 now aged 8 years.
The parents of the said children are Mr Fasham (‘the father’) and Ms Rina (‘the mother’).
In these proceedings, the children are represented by an Independent Children’s Lawyer, Mr Robert Seymour of the Legal Services Commission.
The parties commenced a relationship in or about 2007. The parties were married in 2011. There is a factual dispute between the parties as to the date of final separation. The mother asserts that the date of final separation occurred on 18 November 2013. The mother asserts that the parties lived separately under the one roof (apart from periods when they lived separately) until 26 December 2018. It is common ground that on this date, the mother and the children vacated the parties’ residence and thereafter moved to Canberra in the Australian Capital Territory. It is also common ground that the father has not had contact with the children since that time.
The father contends that the parties continued a relationship up and until the mother left for the Australian Capital Territory on 26 December 2018.
A Family Violence Order was obtained by the mother post separation in Canberra against the father (to which the father consented on a without admission basis). That Family Violence Order has now expired.
Proceedings were issued by the father on 14 February 2019, for parenting orders in relation to the three children. The proceedings have had a slow trajectory through the Court system and have been impacted by a number of factors, including but not limited to the COVID-19 pandemic, the mother and the children residing in two different states during the lifetime of these proceedings, the lack of judicial availability and the father self-representing for a period of approximately 12 months.
The Trial has proceeded before me over six days commencing on 31 January 2022 up and until 9 February 2022. As at the date of these reasons, each of the parties have closed their respective cases. Subject to any application to adduce further evidence, the only evidence currently remaining is of Court Child Expert Ms B. The said Court Child Expert works out of the Canberra Registry of the Federal Circuit and Family Court of Australia. Court Child Expert Ms B has prepared two Family Reports to date, namely on 23 November 2020 and 16 August 2021. I now refer to each of those reports separately.
FAMILY REPORT DATED 23 NOVEMBER 2020 (‘THE FIRST REPORT’)
For the purposes of the first report, Court Child Expert Ms B undertook video interviews of the father and his partner, Ms D, on 12 October 2020. Video interviews were also undertaken of the mother and her new partner, “Mr E”. That also occurred on 12 October 2020. A telephone interview with Ms C, the paternal grandmother, occurred on 13 October 2020. The three subject children were interviewed by Court Child Expert Ms B on 13 October 2020. An observation of the subject children and the mother occurred on the same day. Telephone interviews then occurred with each of the parties and Court Child Expert Ms B on 14 October 2020.
On page 3 of the first report, Court Child Expert Ms B observed under the heading “Limitations of the Assessment Process”:
This Family Report was undertaken during the period when COVID-19 was affecting the Australian community. The interviews with the adults were conducted by video conference and telephone to prevent the spread of the virus, and in accordance with the Child Dispute Services Guidelines at this time. Approximately three quarters of the way of the mother’s interview, the screen began to repeatedly freeze, due to this, the remainder of the interview was conducted by telephone. This is not considered to be a major limitation.
The children were only observed with their mother. This was because the children had not spent time with their father since December 2018, and the author did not consider it to be in the children’s best interests to re-introduce them to their father during the assessment.[1]
[1] See Family Assessment Report of Court Child Expert Ms B dated 23 November 2020 at 3.
In paragraph 96 of the first report, under the heading “Recommendations” Court Child Expert Ms B states as follows:
Unless the evidence suggests otherwise, it is respectfully recommended that:
· The mother is granted sole parental responsibility.
· X, Y and Z live with their mother in the ACT.
· X, Y and Z spend no time with their father.[2]
(my emphasis added)
[2] Ibid [96].
FAMILY REPORT DATED 16 AUGUST 2021 (‘THE SECOND REPORT’)
Prior to the Trial, Court Child Expert Ms B then prepared an updated Family Report dated 16 August 2021 (‘the second report’). For the purposes of the second report, Court Child Expert Ms B undertook the following:
(1)Video interviews with each of the parties and the father’s partner Ms D on 19 July 2021.
(2)Telephone interview of “Mr E” (the step-father) on 19 July 2021.
(3)Video interviews of the subject children on 19 July 2021.
(4)Telephone interviews with each of the parties (separately) on 21 July 2021.
Remarkably it transpired during the mother’s evidence at Trial that she was in Adelaide with the children residing with her family when these interviews took place. During the period of Trial, having heard from both the maternal grandmother and great-grandmother, it was obvious from their evidence that they strongly dislike the father and have accepted the mother’s versions of events without question. The maternal grandmother does so even knowing that the mother misled her as to the purpose of a visit to Melbourne in early 2018. At the time of her trip to Melbourne, the mother informed her family that she was travelling to Melbourne (on a ticket paid for by the father) to receive assistance for a hand injury. The uncontested evidence is that the mother travelled to Melbourne to meet her current partner Mr E in a hotel, having met ‘Mr E online in or about mid-2018. It was shortly after the trip to Melbourne that the mother fled to Canberra to live with Mr E, after alleging that the father had threatened to kill her. The mother conceded under cross examination that she had not reported the serious alleged threat made by the father to the Police. Her evidence on the alleged threat by the father of that to kill her was not credible and I reject it. The mother’s reconstruction of events at separation however, namely as a person fleeing the state due to family violence, then sets the scene for what was to follow in terms of the children being deprived of a relationship with their father for a period of over three years.
On page 2 of the second report, Court Child Expert Ms B notes under the heading “Limitations of the Assessment Process”:
The interviews with the adults were conducted by video conference and telephone. This was because the father lives in South Australia, and the author did not plan to assess him in person due to him not spending time with the children since December 2018. To ensure equity with the parent’s interviews, the author planned to video interview the mother.
On 19 July 2021, the author planned to interview the children at Court, and to observe the mother and the children at Court. However, on 15 July 2021, the author was informed that this could not occur, because to the mother and the children were living interstate (see below for details). Given these circumstances, the children were each interview separately by video. This method can have some limitations, because it is not always clear to what extent children are affected by external factors or are comfortable with remote process. At the commencement of each interview the author spoke to each child about their environment, and each confirmed that they were in a private space. Although observations of the children with their mother were not conducted, this is not considered to be a major limitation because the observations were conducted for the last Family Report in late 2020.[3]
[3] See Family Assessment Report of Court Child Expert Ms B dated 16 August 2021 at 2.
Under the heading ‘Recommendations” Court Child Expert Ms B makes the following recommendations:
Unless evidence suggests otherwise, it is respectfully recommended that:
·The mother is granted sole parental responsibility.
·X, Y and Z live with their mother.
·X, Y and Z spend no time with their father.
·The mother sends the father information regarding the children twice a year to the paternal grandmother’s address.[4]
(my emphasis added)
[4] Ibid [88].
Demonstrably, from the passages set out above, and for a number of different reasons, Court Child Expert Ms B did not undertake any observed interaction of the father or the paternal grandmother with the subject children.
Court Child Expert Ms B has properly conceded in each of her Reports that her recommendations made are subject to evidence (my emphasis).
THE TRIAL
At the commencement of Trial each of the parties’ respective positions were as follows:
The father’s position
The father seeks orders inter alia as follows:
(1)The parties have equal shared parental responsibility for the children;
(2)That within 90 days of an order the mother return the children to the State of South Australia;
(3)That if the mother does not relocate back to South Australia then the children live with the father and spend time with the mother;
(4)That if the mother relocates back to South Australia with the children that the children remain living with her and spend increasing time with the father, culminating in shared care arrangement on a week about basis;
(5)That the father be at liberty to engage with the children in “reunification counselling” with a Family Therapist; and
(6)Specific issue type orders.
The mother’s position
The mother seeks order that:
(1)She have sole parental responsibility for the children;
(2)The children live with the mother;
(3)The children spend no time with the father;
(4)Injunctions be granted restraining the father from attending at the mother’s residence or the children’s schools
The Independent Children’s Lawyer, subject to evidence, supports the orders sought by the mother.
The evidence at Trial thus far
I have heard evidence from the following witnesses up to this point in the Trial:
(1)The father;
(2)The paternal grandmother, Ms C;
(3)The father’s partner, Ms D;
(4)The mother;
(5)The maternal grandmother, Mrs Rina; and
(6)The maternal great-grandmother, Ms F.
The mother elected not to call her new husband “Mr E” with whom she and the children now live with in Melbourne. The failure of the mother to call “Mr E” has already been the subject of critical comment by the father’s counsel, who has already foreshadowed inviting the Court to draw an adverse inference in this regard.
The only evidence remaining is of Court Child Expert Ms B. Court Child Expert Ms B continues to work from the Canberra Registry of this Court. The mother now resides in Melbourne in the State of Victoria. The father continues to reside in Adelaide, South Australia. Hence, it will be logistically very difficult and expensive for Court Child Expert Ms B to have any further involvement in this matter unless it is to occur electronically.
Pursuant to section 69ZR of the Act, the Court has the power to make determinations, findings, and orders at any stage of the proceedings. Section 69ZR of the Act states as follows:
(1)If, at any time after the commencement of child related proceedings and before making final orders, the Court considers that it may assist in the determination of the dispute between the parties, the Court may do any or all of the following:
a.Make a finding of fact in relation to the proceeding;
b.Determine a matter arising out of the proceedings;
c.Make an order in relation to an issue arising out of the proceedings.
(2)Subsection (1) does not prevent the Court doing something mentioned in paragraph (1)(a), (b) and (c), at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.[5]
[5] Family Law Act 1975 (Cth) s 69ZR.
Section 69ZS of the Act also provides as follows:
At any time during child-related proceedings, the Court may designate a Family Consultant as the Family Consultant in relation to the proceedings.[6]
[6] Ibid s 69ZS.
The Court has heard evidence over six days to date. Each of the parties have closed their cases. The state of the evidence thus far causes the Court concern that there has been no attempt at an observed interaction occurring between the father and the subject children since proceedings were instituted by the father in February 2019. At this stage of the evidence, the Court has significant concerns as to the veracity of the mother’s evidence as it relates to her decision to move unilaterally with the children to the Australian Capital Territory with the three subject children and to deprive the children from having any form of contact with the father and their paternal family.
The mother impressed in the witness box as a far more sophisticated person than the father. The mother also impressed as a being highly controlling of the situation surrounding her departure from South Australia and the information which has been put before a number of medical professionals who have treated the children both in South Australia and the Australian Capital Territory. Against her interests, the mother has now made a number of significant concessions under oath in relation to the truthfulness (or otherwise) of allegations regarding the father’s past conduct to her and the impact of the father’s behaviour on the children. Those concessions under cross examination must give the Court concern as to the situation which now confronts the Court with respect to the state of the children’s relationship (or rather lack thereof) with their father. The mother conceded under cross-examination that she has been less than truthful (and I put this as neutrally as I can) with her own family, medical professionals, the South Australian Police and most concerningly, with this Honourable Court. The “misinformation” provided by the mother has resulted in recommendations being made as to the children’s medical treatment, administration of medication and most importantly, as to the nature and the future relationship of the children with their father.
This is not to say that the father has been completely candid in his evidence or conduct before the Court either. For example, the father admitted under cross-examination by Ms Betro that he had misled Family Consultant G as to the date he ceased using marijuana. I further anticipate that there will be a submission made by Ms Betro on behalf of the mother that the father continued to use marijuana for a period of two years in excess of the two years he asserted to Family Consultant G and that he attempted to side step orders in relation to drug testing in the interim stages of these proceedings.
The recommendations made by Court Child Expert Ms B in her two reports properly conceded that those recommendations were based on the evidence available to her at that point in time. In my view, having heard six days of evidence, the evidence supports an order now being made for a period of observed interaction between the father and the paternal grandmother in the protective environment of the Court Children’s Services at the Adelaide Registry of this Court.
I am satisfied that in making the proposed orders, they are in the best interests of the children given:
(a)The extensive evidence that I have heard over six days of Trial;
(b)The fact that an experienced Court Child Expert will be present with the children whilst such observed interaction takes place; and
(c)The paternal grandmother will also be in attendance. The evidence during Trial supports a finding that prior to the mother’s unilateral relocation, the three children enjoyed a good relationship with their paternal grandmother and that the paternal grandmother had their best interests at the forefront of her mind, when she was able to see them.
It is also appropriate at this juncture to introduce a different Court Child Expert pursuant to section 69ZS of the Act, in circumstances where:
(1)Both of the parties and the subject children are in Adelaide, with the children having accompanied their mother when she travelled to Adelaide to participate in the Trial; and
(2)Where the mother has now again relocated, this time from Canberra to Melbourne and it would be impractical and expensive for the parties and the children to travel back to Canberra for any further period of observed interaction to occur with Court Child Expert Ms B.
The mother gave evidence at Trial that she is presently staying with the maternal family in Adelaide. The maternal grandmother and great-grandmother each gave evidence that they would be in a position to assist with accommodation for the mother and the children for any occasion whilst she is in Adelaide. The mother and the children historically have done so since departing Adelaide for up to weeks at a time. Given that the children have been in Adelaide for the past two weeks, I do not consider that a further short delay to their resumption of school will be to their detriment, particularly in circumstances where families are now adept at learning online. Furthermore, historical school reports tendered by the father at Trial evidence that the children having been late or not attended at school for lengthy periods during the parties’ relationship. I note however that the most recent school reports show an improvement with respect to the children’s arrival at school on time and their attendance at school.
I propose therefore to make orders that the mother deliver up the children to the Court Children’s Services at the Adelaide Registry of this Court at 12:30pm on Monday 14 February 2022 and that a period of an observed interaction occur between the father, paternal grandmother and the subject children in the presence of a Court Child Expert for such period as the Court Child Expert considers appropriate, but if possible, for a period of up to two hours. I intend to make a further order restraining the mother from remaining in the Court building whilst the observed interactions are underway and further restraining her from communicating with the children by mobile telephone, or any other electronic device that the children may bring with them to the appointment. This is to ensure that the interaction is not impacted by any other external influences.
The Court considers it is in the children’s best interests for a period of supervised interaction to take place before proceeding to make final orders.
I decline to make any further or other orders sought by the father in his Application in a Proceeding filed on 9 February 2022. The Court is yet to hear from Court Child Expert Ms B. The evidence has not concluded. I have not heard final submissions. The children have not seen the father for in excess of three years. I do not consider that it is in the children’s best interests for interim orders to be made as sought by the father pending a conclusion of the evidence and proper consideration of the evidence.
I decline to make the order for costs as sought by the mother. The father’s application has been successful to the extent that an Addendum Family Report has now been ordered. The father is also in receipt of a grant of funding from the Legal Services Commission pursuant to section 102NA of the Act.
CONCLUSION
For all of these reasons, I make the orders as set out at the commencement of these reasons.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 14 February 2022
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