Galvin and Galvin (No 2)

[2020] FamCA 908

FAMILY COURT OF AUSTRALIA

GALVIN & GALVIN (NO. 2) [2020] FamCA 908

FAMILY LAW – CHILDREN – Interim – Where there are currently interim parenting orders providing for the child to live in an equal shared care arrangement – Where the father seeks a variation of those orders based on the child’s views allegedly expressed to him – Where a recent independent report has been prepared to ascertain the child’s wishes – Where the Independent Children’s Lawyer recommends that the child spend time with the mother from after school Friday to before school Monday each alternate weekend – Where the father supports this position and the mother opposes it – Where it is in the child’s best interests to live principally with her father and for her father to facilitate additional time with her mother in accordance with the child’s wishes.

FAMILY LAW – PROPERTY – Interim – Where the wife seeks an interim litigation costs funding order – Where the wife is unable to continue to meet the legal costs associated with these proceedings and family violence proceedings – Where the husband has capacity to pay a lump sum – Where the characterisation of that payment is to be determined by the Trial Judge.

Family Law Act 1975 (Cth)

APPLICANT: Ms Galvin

RESPONDENT: Mr Galvin

INDEPENDENT CHILDREN’S LAWYER: Amanda Smerdon

FILE NUMBER: BRC 6885 of 2017

DATE DELIVERED: 28 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Trueman
TWC Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Evans Brandon Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smerdon
Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That all previous parenting Orders are discharged.

2. That except as otherwise stated, the parents shall have equal shared parental responsibility for the major long-term issues for the child, Y born … 2007.

3. That the mother and father shall consult with each other about decisions to be made in the exercise of their shared parental responsibility and shall make genuine effort to come to a joint decision. They are not, however, required to consult with each other about Y’s daily care whilst Y is in their respective care. The types of decisions about which the parents are required to inform, and consult include but are not limited to:

   (a)      changing Y’s name;

   (b)relocating Y’s residence so that the parenting arrangements provided for by this Order, or as subsequently varied by written agreement signed by the mother and father, become impracticable;

   (c)changing Y’s school, and

   (d)significant medical intervention for Y.

4. That Y shall spend time with each parent as agreed between them but failing agreement, during school term she shall live with the father and spend time with the mother at least each alternate weekend from after school Friday until before school Monday.

5. That Y shall spend additional time with her mother during school term pursuant to Y’s wishes.

6. That Y shall spend half of all school holiday periods with each parent on a week-about basis, commencing with the parent whose usual weekend falls at the conclusion of the school term.

7. That unless otherwise agreed in writing between the parents, Y shall spend the following additional time with her mother and father as follows:

   (a)on her birthday, with the parent with whom she is not living with on that day as follows:

   (i)       if a school day, from after school until 7.00 pm, and

   (ii)if a non-school day, from 1.00 pm until 7.00 pm;

   (b)the parent with whom Y is not living on her birthday shall collect Y from her school (if the day is a school day) or the other parent’s home (if the day is not a school day) and shall return Y to the other parent’s home at the conclusion of Y’s time with the relevant parent;

   (c) with her father for some time, as agreed between the parents, on his birthday and with the mother for some time, as agreed between the parents, on her birthday;

   (d)with her father on the Father’s Day weekend from 9.00 am Saturday to 5.00 pm Sunday;

   (e)with her mother on the Mother’s Day weekend from 9.00 am Saturday to 5.00 pm Sunday, and

   (f)between Christmas Eve and Boxing Day as follows:

   (i)with her mother from 2.30 pm on 24 December until 12 noon on 25 December in each odd numbered year;

   (ii)with her father from 2.30 pm on 25 December until 12 noon on 26 December in each odd numbered year;

   (iii)with her father from 2.30 pm on 24 December to 12 noon on 25 December in each even numbered year, and

   (iv)with her mother from 2.30 pm on 25 December until 12 noon on 26 December in each even numbered year

8. That Y shall be at liberty at all reasonable times to telephone the other parent with whom she is not living.

9. That when Y is living with or spending time with her mother or father as the case may be or at changeovers, each parent shall:

   (a)respect the privacy of the other parent and not question Y about the personal life of the other parent;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent to or in the presence or hearing of Y and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the hearing or presence of the child;

   (d)not discuss any Court proceeding with, or in the presence or hearing of, Y and shall use their best endeavours to ensure that no other person discusses such matters with, or in the presence or hearing of, Y; and

   (e)not use or rely upon Y to communicate between them or to pass messages one to the other.

10. That the mother and father shall not consume any alcohol or use any illicit drug or substance, or be under the influence of alcohol or any illicit drug or substance at all, when Y is in their respective care.

11. That within 24 hours of a request via email from the Independent Children’s Lawyer, the parents shall undertake Carbohydrate Deficient Transferring (CDT) Testing for alcohol consumption.

12. That for the purposes of the testing described in Order 11:

    (a)the ICL will not request testing at a frequency of more than once per calendar month;

    (b)the parents shall provide the results of such testing to all parties as soon as they are available; and

    (c)the parents shall each be responsible for the costs of their own testing, but with each having the right to make application at a later date for different apportionment of responsibility for the costs of same.

13. Noting that each parent has already deposed to having already engaged with, a therapeutic counsellor for the purposes of dealing with any issues concerning misuse or abuse of alcohol or any prescription medication or the use of any illicit drug or substance, each shall provide the ICL, if they have not already, with evidence of same in the form of confirmation in writing from that counsellor, such confirmation to include contact details of that counsellor.

14. That the Independent Children’s Lawyer is at liberty to provide to the drug and alcohol counsellors a copy of the Family Report of Mr C dated 25 February 2020.

15. That the parents do all acts and things as are necessary to ensure that Y continues attending on Ms B for therapeutic counselling as recommended by Ms B.

16. That the Independent Children’s Lawyer is at liberty to provide Ms B with the Family Report of Mr C dated 25 February 2020 and the Wishes Report dated 15 October 2020.

17. That the mother and father shall communicate in writing to one another about Y via a password protected parenting server known as “Our Family Wizard”.

18. That in relation to all communications and contact between the parents each parent shall:

    (a)be of good behaviour and not commit domestic violence (as defined by the Domestic Violence Protection Act 2012 (Qld) against the other;

    (b)respect the privacy of the other parent and not question each other about the personal life of the other parent;

    (c)speak to the other parent respectfully;

    (d)not denigrate, insult, abuse, harass or intimidate the other parent;

    (e)not commit any acts of domestic violence as defined by the Domestic Violence Protection Act 2012 (Qld);

    (f)not procure any other person, other than a lawyer acting on their behalf, to contact or attempt to contact the other parent.

19. That neither parent shall attend at the home of the other parent without the consent in writing, including by text message or email, of the other and shall immediately leave the home of the other when requested.

20. That if they have not already done so, the mother and father shall within seven (7) days of the date of this Order do all things reasonable and necessary to each enrol in parenting programs and undertake such programmes as soon as they may be practically able to with an entity such as M Services or N Services and follow any recommendation or directions made to them by any course coordinator or counsellor. That the father pay the cost of both parties’ attendance at both courses but with each parent having the right to make application at a later date for different apportionment of responsibility for the costs of same.

21. That the mother and father shall provide their certificates of completion in relation to the parenting programs to all other parties as soon as they are available.

22. The mother and father are hereby authorised to obtain from Y's school all notices, letters, school reports and invitations and to attend any parent/teacher interview(s) or other school activities that they as Y's parents may attend and provision of a copy of this order to Y's school shall be sufficient authority for the school to release such documents and information concerning Y to the mother and the father.

23. That in relation to all communications between the parents and Y’s school and any extra curricula activity and sporting providers, each parent shall:

    (a)respect the privacy of the other parent and not question the school or extra curricula activity and sporting provider about the personal life of the other parent;

    (b)speak of the other parent respectfully;

    (c)not denigrate or insult the other parent;

    (d)not discuss any Court proceeding with the school or extracurricular or sporting provider.

24. That the mother and father shall each keep the other informed of their residential address and mobile telephone number and shall give notice of any such change within 48 hours of such change occurring to the other parent.

25. That the mother and father shall advise and keep the other parent informed as to the name, address and contact telephone number of any doctor, dentist or allied health professional to whom Y is referred for any medical care or treatment for her health and wellbeing and provision of a copy of this order to Y's doctor dentist or allied health professional shall be sufficient authority for that person or entity to release to the requesting parent such documents or information concerning Y as they have in their possession, power or control.

NOTATION:

(A)Noting Y’s age, both parents shall respect and facilitate her expressed wishes in relation to spending time with each of her parents.

Interim Litigation Costs Funding Order

1. That within fourteen (14) days of the date hereof, the father shall cause the sum of   $106,705.76 to be paid to the trust account of the mother’s solicitors, TWC Lawyers, by way of an interim litigation costs funding payment, with any further characterisation of that payment to be a matter for agreement between the mother and the father or, failing agreement, for the trial judge to determine.

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 Galvin & Galvin 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 BRISBANE

FILE NUMBER: BRC 6885 of 2017

Ms Galvin

Applicant

And

Mr Galvin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 28 August 2020 I made interim parenting Orders in these proceedings and adjourned the competing applications of the parents of 13 year old Y to Monday, 26 October 2020 for further hearing. I gave written reasons for my Orders that day. I will not go over again all of the evidence that I discussed in those reasons and the basis of that decision that day. Those reasons I gave can be read in conjunction with these reasons. Essentially, the adjournment was to permit further evidence from experts going to the views of the 13 year old child to be obtained and put before the Court.

2. Those experts were the Social Worker, Mr C, and the Child Psychologist, Ms B. Mr C had prepared a family report earlier in these parenting proceedings that had pre-dated Orders that were made in late March this year with the consent of each of the parents. Those Orders provided for Y to live with her mother and father on a week about basis. They also provided for Y to attend upon Ms B for counselling and they placed restraints on each parent in respect of their alcohol consumption whilst Y is in their respective care.

3. In June, the father applied to the Court for a change in the interim Orders. He based that on the child’s views, allegedly expressed by her to him and to Ms B. At the time, the father made some unilateral changes to the equal time arrangement, restricting Y’s time with her mother pending the hearing of his application. He based that on those views she was said to be expressing, too. The mother opposed the application.

4. I heard the application in August and determined that the independent gathering of Y’s views would be best facilitated by having Ms B and Mr C provide reports to the Court, as proposed by the Independent Children’s Lawyer (“the ICL”) at the time (and agreed to by the parents), and that same would probably assist the Court determine the matter, particular given Y’s age. I ordered that the week about arrangement be restored in the meantime.

5. Ms B provided a report on 6 October. Mr C, who was provided with Ms B’s report and the recently filed Court material of the parties saw Y on 9 October and provided a report on 15 October.

6. At the hearing on Monday, 26 October, the ICL submitted that the existing interim parenting orders be varied and that the arrangements for Y’s care be changed so that she lives principally with her father and spends time with her mother from after school on Friday to before school on Monday each alternate weekend during school term and that any additional time with her mother be in accordance with her own wishes. The father supported that position, but the mother opposed it, wanting the arrangements to remain as they currently are, whilst affirming her commitment to let Y go back to her father’s place any time she wants.

7. The ICL relied on the two expert reports in support of her primary submission that Y’s views have clearly changed since she saw Mr C earlier this year and that an equal shared care regime is now no longer in her best interests.

8. In his March 2020 report, Mr C reported that Y apparently expressed a preference for the week-on, week-off arrangement, but he did say she conditioned that by saying “as long as Mum promises not to drink when I’m there”. He concluded that report recommending that Y live in the equal-shared living arrangement between the parents that they then agreed do.

9. In his latest report, Mr C recorded that Y had expressed disappointment that the Court had ordered a return to the week about arrangement in August after she had told her father she did not want to do that. She is recorded as telling Mr C that she had told Ms B she wanted to stay with her father and thought that “the Judge would keep it that way”. Mr C reported that Y told him that she thought she and her mother would get on better if they spent shorter amounts of time together. He reported her clearly telling him that she believed her mother was still drinking alcohol when Y was in her care despite being ordered to totally abstain during those periods. She made it completely clear to Mr C that she considers her mother has an alcohol abuse problem but that her father does not. When he asked her what she might like to change about her mother, he records her answer as “alcohol addiction”. Y, he said “thinks it is obvious that her mother is dependent on alcohol” and “does not want to do anything about it”. He wrote:

   She likes the idea, regardless of the future arrangement, of being allowed to telephone her father if she holds concerns that her mother is drinking alcohol, or if the conflict with her mother gets out of hand. She thinks it would make things easier and she would feel more assured about staying with her mother under those conditions.

10. He also wrote that Y expressed the view that it would be “better if Dad just got full custody”. She told Mr C that with her mother it is complicated and that “she will say yes and then no and then yes and then no”. She said that alternate weekends with her mother and living with her father would “probably be better” but went on to say “I wouldn’t mind week on and week off, if I could call Dad to pick me up. I wouldn’t mind that either.”

11. Mr C concluded his report with a summary of their discussion. He said that Y said that if a decision were made for her to live with one of her parents, she wants to live mainly with her father, provided she can continue to see her mother and spend time with her. He said she is favourable to a week about, but only if she can feel assured that her mother does not drink alcohol and they do not argue as much. He wrote that she loves her parents and does not want to hurt their feelings.

12. Ms B reported that Y had described in sessions with her “several occasions where she had witnessed the parents’ conflict and as well, many occasions when she saw her mother very drunk while in her mother’s care.” She reported that Y told her that her mother takes her mobile phone from her to prevent Y from calling her father.

13. She wrote that Y told her in their 12 September session that there had been improvement in things between her and her mother but that she would still prefer to live with her father, though she does not want to hurt her mother or “break her heart”.

14. I accept that there is merit, having read those reports, in the ICL’s submission that Y’s views have changed since March this year. It does seem clear that Y would prefer to principally live with her father and spend less time in her mother’s care but says she could cope with equal-shared care if her mother did not drink and if she could be assured that she would be returned to her father’s care during her time with her mother if she wanted to be returned.

15. The second and important part of the ICL’s submission was also very persuasive. She submitted that it would be in Y’s best interests to live principally with her father and to rely on her dad facilitating extra-time in her mother’s care when Y requested it rather than living week about and having to rely on her mother’s willingness to let her return to her father when she asks her during her time with her mother. The ICL said this would significantly relieve Y from having to have very difficult conversations with her mother and it would also relieve Y from the conflict that occurs between her parents around the week-on/week-off arrangement and the matters that give rise to Y’s wishes to return to her father’s care.

1. The evidence supports that submission in my judgment. Y’s reporting suggests that she has had difficulties with her mother changing her mind on and off, arguing with her, and taking her phone so she cannot call her father. She does not appear to have the same difficulties with her father. The evidence supports the view that the father is more willing to facilitate time between Y and her mother outside strict observance of the Court ordered time and a finding that he will be more likely to readily support any requests Y makes to spend additional time with her mother. I acknowledge that the mother asserts in her evidence that she is not drinking alcohol when Y is in her care and that Y is being influenced by her father to say that she is. With respect, even though this is an interim hearing and I have not seen the mother cross-examined (in fact, I have not seen her at all as both interim hearings were conducted by video conferencing and she did not attend Monday’s hearing), I consider Y’s views, reported to her father, to Ms B and to Mr C, to be persuasive enough and I am, in the face of the evidence about them, not prepared to say that I accept the mother’s denials about the alcohol use whilst Y is in her care. Her 13 year old daughter considers the mother has a real problem with alcohol abuse and that the mother does not want to do anything about it. As such, I consider that there is most likely a problem. Although I acknowledge that for the mother it might not be as simple as wanting or not wanting to do something about it, but I am satisfied that for the sake of her future relationship with her young teenage daughter she needs to try to do something about it. She said in her latest affidavit that she has been attending counselling to address the problem. I hope that continues and is successful.

2. I will vary the existing interim Orders so that Y’s time with her mother is reduced in accordance with the proposals and submissions of the ICL, and with the Orders expressly requiring the parents to acknowledge and act on Y’s wishes to return her to the other parent’s care at any particular time that she wishes to do that.

3. I will also make the other Orders that the ICL submitted should be made in respect of CDT (Carbohydrate Deficient Transferrin) testing and in respect of counselling and participation in further parenting programs. I did not understand those Orders proposed by the ICL to be opposed, save for counsel for the father submitting to the Court that the father’s right to ask for an apportionment of the costs that he will be required to meet in the first instance should be preserved. I will do that as I consider that a reasonable request.

4. I will make all of the parenting Orders set out at the commencement of these written reasons. There are a number that were proposed by the ICL that I have not specifically mentioned and dealt with, but as I did not consider them to be opposed by either parent I do not consider it necessary to give any further reasons other than that I consider them to be in Y’s best interests at this interim point in the proceedings and I will make them.  

5. As for one order the father asked for in respect of Y’s time with each parent on his or her birthday, I will not make the order in the specific terms sought by the father (which was overnight on the eve of such birthday). I consider it sufficient for these interim Orders simply to provide that Y spend time with each of her parents on his or her birthday, such time to be agreed as between them. I expect this will ensure mutually acceptable arrangements will be able to be made.

Interim Litigation Costs Funding

1. The mother also pressed an application for an interim litigation costs funding order to be made requiring the father to pay her the sum of $106,705.76.

2. Her evidence in support of that application is simple. She says she is unable to continue to meet the legal costs associated with these proceedings and the family violence proceedings in the State Courts. She received $100,000 in interim litigation costs funding from the father in March this year. That has all been spent on legal fees with her former solicitors who she has paid over $350,000 to date. She still owes them money. She also now owes her current solicitors money as well. She says she has no more funds at her disposal. The father has spent around $200,000 in legal fees to date. Accordingly, with unresolved parenting and property proceedings and unresolved family violence proceedings, these two parties have spent nearly $600,000 between them, with the mother apparently spending almost twice as much as the father.

3. It seems clear that the father controls the wealth “of the parties or either of them”. The mother said in her evidence that the documents produced under subpoena by L Company shows the father had $6,302,800 in an account in March this year and $473,351 in another. The father did not make any real argument against that evidence. Rather, his counsel focused his argument around the father’s evidence that the father had paid the wife $1,000,000 over the last few years, making the submission, effectively, that at some point enough must be enough.

4. Significantly though, at one point during the submissions of the mother’s solicitors, counsel for the father interrupted to tell the Court that the father was making an “open offer” to pay the wife $100,000 for her litigation costs, conditioned on it being treated as partial property settlement. The solicitor for the mother simply told the Court in response that she did not have and could not get instructions from the mother at that point in time to accept that offer.

5. In all the circumstances, I accept that the father’s open offer is evidence supportive of his capacity to pay a lump sum of this amount to the mother for her interim litigation costs. The mother asked for a very specific sum, obviously based on that which she owes her former solicitors and estimates of her further costs. It is not, relatively speaking, much more than the $100,000 that the father offered. I will make the order in the specific amount sought by the wife but I will not characterise it at this point in the proceedings as partial property settlement.

6. I will make the order utilising the costs power available to me in s 117(2) satisfied that the circumstances justify doing so. I am satisfied that making the order as an interim litigation costs funding order will permit the parties themselves to determine how it is to be treated in the resolution of their property dispute and, in the absence of such agreement, it will not fetter the way in which the judge who might ultimately determine the dispute exercises her or his discretion in considering how the payment might best be characterised.   

7. Some other orders about the use of court material in other proceedings were agreed to and made by me on the day of the hearing with the consent of the parties.

8. I make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 October 2020.

Associate: 

Date:  28 October 2020