GARCON and GARCON

[2020] FCWA 193

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GARCON and GARCON [2020] FCWA 193

CORAM: TYSON J

HEARD: 12 OCTOBER 2020

DELIVERED : Ex tempore

FILE NO/S: [Redacted]

BETWEEN: MS GARCON

Applicant

AND

MR GARCON

Respondent

Catchwords:

FAMILY LAW - Parenting - Interim arrangements pending trial - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms D
Respondent	:	Mr E
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm C
Independent Children's Lawyer	:	Law Firm D

Case(s) referred to in decision(s):

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garcon and Garcon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

TYSON J:

1 Before the Court is the oral application of the mother, supported by the Independent Children's Lawyer, to vary interim parenting orders made on 16 November 2017. That application follows the successful application made by the father today to vacate the trial.

2 In summary, the mother seeks orders in terms of the minute of proposed orders handed up in Court, accepted for filing today. The mother seeks firstly, to reduce the children's telephone contact with the father from twice a week to once a week, but extend the telephone communication to include special occasions, such as the children's birthdays, the father's birthday, Father's Day and Christmas Day. Secondly, the mother seeks a number of injunctions which are expressed, on a without admission as to needs basis. The injunctions include a restraint from the father texting, emailing or making any contact with the child [Child B] via any social media platform, approaching or being within 50 metres of either Child B or [Child C], and requesting third parties, including, but not limited to, persons from [Business A], communicating or attempting to communicate with the children by whatever means on his behalf.

3 The mother's application is supported by the ICL as being in the children's best interests. They are opposed by the father.

4 The mother, in support of her application, has relied upon the affidavit of [Ms F], filed on 7 June 2018, aspects of the mother's trial affidavit filed on 15 May 2020, and the report of the Single Expert Witness which has been distributed today.

5 At the outset of the hearing, I indicated to the father's counsel I was prepared to entertain the oral application, given the circumstances. I stood the matter down to enable the father and his counsel to ensure that they had all the material, and to take instructions before making submissions.

6 For the reasons that I have indicated earlier today, which I do not intend to repeat, the father has failed to comply with orders of the Court and has not filed any trial material.

7 The father made submissions, both through his counsel and personally. As I observed during the course of the hearing, to the extent the father or his counsel sought to lead evidence from the bar table, they are matters upon which I attach no weight.

8 The decision which the Court is required to make, is based upon the evidence properly before it.

What are the facts?

9 This is a difficult case. These proceedings concern three children, namely, [Child A], born [in] 2005, Child B, born [in] 2007, and Child C, born [in] 2013. The parents were both born in [Country A]. They commenced living together in either 2004 or 2005 and subsequently married in 2008.

10 In 2009, the parties migrated to Australia and they separated in either late 2015 or early 2016.

11 Since that time, the parties have been embroiled in litigation before this Court. At separation, Child A lived with the father while Child B and Child C lived with the mother.

12 There was a subsequent agreement for those arrangements to continue, on the basis the children would spend alternate weekends with the other parent and with their siblings. Those arrangements broke down.

13 Interim orders were made on 16 November 2017, which discharged the previous orders and provided for all of the children to live with the mother and for her to have sole parental responsibility, for the children to spend time with the father, supervised through a professional agency, and the children to communicate with the father by telephone, Skype, FaceTime or Hangout, each Wednesday and Saturday between 6 and 6.30 pm.

14 Those orders specifically provided for the father's communication with the children to be by way of speaker phone, so the mother could terminate the call in the event the father engaged in inappropriate discussions with the children.

15 On that date, a number of injunctions were made restraining the father from attending any educational or child-care facility attended by the children, removing or attempting to remove the children from those facilities, or from the mother's care, or from any third party nominated by the mother to care for the children, restraining the father from attending the mother's home or within 50 metres of her home, restraining him from denigrating the mother, the mother's friends or family to the children, discussing the children's wishes with them, insofar as their living arrangements or school attendance and discussing the proceedings with the children.

16 Since that time, three supervision agencies have been involved in supervising the father's time with the children. Each of those agencies have declined to offer ongoing supervision, because the father refused to comply with their directions and rules.

17 A fourth proposed supervision agency declined to be involved, following advice about the history of previous supervised visits.

18 I summarise those matters, to highlight the significant disruption in the children spending time with their father.

19 As matters presently stand, all three children live with the mother. There are no orders for the children to have any direct contact with their father, apart from the telephone communication to which I have referred.

20 It is common ground, notwithstanding those orders, the father has contacted Child C and Child B, including attending a train station and meeting them before and after school. The father has continued to have electronic communication with the children over and above what is permitted in the orders.

21 The parties have also been involved in litigation in other Courts.

22 Counsel for the mother has drawn the Court's attention to the fact that a Violence Restraining Order was granted on an interim basis for the protection of the mother against the father [in] November 2017. That order has subsequently been made final.

23 The mother also obtained a Violence Restraining Order for the protection of Child A against the father [in] February 2018. That Violence Restraining Order has subsequently been cancelled.

24 The mother, in support of the orders, has referred the Court to the extracts attached to the affidavit of Ms F, which sets out a chronology of the communications between the father and the mother and the children.

25 It is annexure A to the affidavit of Ms F, sworn [in] June 2018. The mother says notwithstanding the Violence Restraining Order for the protection of Child A and notwithstanding the orders made by the Court to which I have referred limiting the father's contact, the call log demonstrates the father continued to contact the children outside the times permitted in the orders.

26 The Court has been directed to number of pages which demonstrate the father communicating with Child A, in breach of the orders made by the Family Court, and in breach of the orders made by Court A. For example, [in late] March 2018, the father contacted Child A 18 times.

27 The mother's counsel submits, and the records demonstrate, that there are regular and frequent contact between the father and Child A, often on a daily basis and on multiple occasions.

28 The mother says the orders she seeks are not to prevent the father having any contact with the children but, rather, to reduce the contact the father has with the children to protect them from harm. She is particularly concerned about Child B. The mother refers to the present circumstances of Child A, to which I referred in Reasons delivered earlier today and which I do not intend to repeat. The mother says there is a likelihood that Child A's current circumstances have come about as a result of her being triangulated in the conflict between the parties, but also as a consequence of the father's ongoing and relentless denigration of the mother to Child A.

29 The mother's counsel has foreshadowed at the trial, submissions will be made that the father's conduct demonstrates an ongoing obsession towards the children and an inability to comply with orders made by the Court. If the orders are not made in terms of the mother's application, she says Child B will be subjected to the same degree of pressure that Child A has been the victim of, which has, potentially, impacted on the current difficult circumstances Child A finds herself in.

30 Submissions have further been made about the circumstances in which the father communicated directly with Child A at the time the Violence Restraining Order was obtained by the mother for her protection in Court A. It is not in dispute that the father made arrangements for a third party from Business A, who was not known to Child A, to bring her to Court A.

31 There are messages, which have been the subject of submissions today, at exhibit 13 to the mother's trial affidavit, which are directly between the father and Child A in relation to that issue. The mother says in the absence of an order to reduce the telephone contact, the pressure Child B will be subjected to is unrelenting, and likely to increase. Further, the mother says the evidence of the Single Expert supports the granting of the injunctions because the father, by his own conduct, is continuing to breach orders made by the Court.

32 The father, both in his own submissions and through his counsel, has denied denigrating the mother. He accuses the mother of denigrating him. He accepts that he communicates with the children on a regular basis. He has acknowledged having unsupervised contact with the children, by collecting them before and after school. The father says that he does so at the request of Child B.

33 The father says the telephone records are incomplete: they only refer to the father's communications with the children and they do not include the children's communications with the mother.

34 The ICL supports the mother's application. She says the father's submissions made today illustrate the lack of insight into his conduct and the pressure that he has placed upon the children. She has also referred to the incident concerning Child A attending Court A. The ICL says that the father's communications with Child A and his conduct was inappropriate and not in Child A's best interests.

35 The ICL has also referred to material that is in subpoenaed material, which raise further concerns about the father's conduct. That material is not formally before me and I do not intend to attach any weight to it.

Single Expert Witness

36 As I have indicated, the mother and ICL have relied on the report of the Single Expert. The report of [Mr A] was distributed by the Court today. Each of the parties have had an opportunity to read it carefully and to take preliminary legal advice in relation to the contents.

37 The report is prepared by Mr A, who is a clinical psychologist appointed pursuant to orders made [in late] October 2019. The Single Expert, in summary, described the level of parental conflict as high, continual and chronic, dating back to 2016. He described the nature of the conflict as being inter-personal, attitudinal and legal: the parents as being unable to communicate, unable to co-operate and struggling to co-operate with the structure of Court orders.

38 He observed at that time the parents disagreed about the children's schooling and their living arrangements, amongst other matters. Mr A considered both parents wanted the best for the children, however, the children had been caught in the middle of their dispute. Mr A had the opportunity to interview each of the parents, to interview each of the children and convene a joint session between the parents.

39 Mr A concluded the father lacked the capacity to provide for the children's psychological and emotional needs because of his ongoing and continual denigration of the mother to the children. Mr A considered, from the material available, that the mother was encouraging the children's relationship with the father, but the father was not reciprocating and encouraging the children's relationship with the mother.

40 Mr A considered the mother provided well for all of the children's needs, notwithstanding the difficult circumstances caused by the father's behaviour.

41 Mr A recommended the children continue to live with their mother, and no changes be made in terms of the children's living arrangements. To change their residence, he opined, would place the children at risk, unless and until the father takes steps to address his behaviour.

42 The Single Expert has predicated a number of concerns for the children if the Court were to entertain the orders sought by the father for the children to live in a shared care arrangement. Those concerns include the children not complying with the orders, and in the case of Child A, her running away and simply refusing to comply.

43 Mr A recommends the father access counselling, and he attend programs to address anger management and parenting.

44 Mr A has described the children as being caught in a parental tug-of-war. In his view, the children have a secure, stable and consistent relationship with their mother, who is their primary carer and attachment figure. Mr A did not consider the children were at any risk in her care. Mr A did not describe the children as sharing the same relationship with their father, and it is fair to say that their relationship is fraught.

45 Both Child A and Child B told Mr A their father denigrated the mother and had discussed Family Court proceedings with them. Mr A considered the children were at risk of neglect and psychological harm or abuse, because the father continued to denigrate the mother to, and in the presence of, the children. He considered the potential risk of physical harm by the father to the children and the mother was low, subject to the caveat that if the father continued to harass, insult or make threats against the mother, then the risk of harm may increase.

46 The Single Expert cited a number of examples of the father's behaviour which caused alarm. That included the father verbally denigrating the mother to the children, corroborated by the father's affidavit material. That was also consistent with the reports of the mother, Child A and Child B and corroborated by the reports of the supervision agencies.

47 Mr A said during their joint session the father denigrated and verbally abused the mother, resulting in him asking the father to leave.

48 Mr A considered the father loved the children and was passionate about them, but he: failed to reflect on his own behaviour; he continued to blame others, including the mother, the mother's lawyer, the ICL, and the Family Court, for the present predicament. He viewed the father as lacking insight.

49 Mr A spoke with each of the children. Child A said she wished to live with her mother and she did not wish to spend time with her father. Child A said she wanted the father to respect her privacy, not to threaten her and not to discuss the mother, the Family Court proceedings or the outcome he wants with her.

50 Child B indicated she also wanted to live with her mother, with whom she feels safe and secure. She acknowledged to Mr A she had told the father that she wanted to live with him, in her words, to avoid arguments, to prevent her father becoming angry and to avoid upsetting him. Child B reported feeling anxious and sad when her father denigrated her mother, whom she described as being obsessed in talking about.

51 Child B indicated she would like to see the father, but only if that time was supervised.

52 In respect of Child C, the Single Expert considered given his age, no weight could be attached to his views. Mr A observed Child C had a close relationship with his mother: Child C was secure living with her and his siblings. He observed Child C was not fearful of his father. Child C indicated that he wanted to see his father.

53 Contrary to the submissions made by the father's counsel, the Single Expert considered the children's views had not been influenced by the mother, and significant weight ought be attached to them. The Single Expert concluded the father's behaviour had likely influenced the children's desire to live with their mother and their expressed views in terms of their contact with their father.

54 The report of the Single Expert is untested. However, it is independent evidence and it is evidence upon which I attach weight.

What is the Law?

55 These proceedings are determined pursuant to the Family Law Act 1975 (Cth), and the Court's power is to make such parenting orders as it thinks proper.

56 My intention is to deliver short Reasons only, and given the narrow parameters of the dispute, there are a limited number of factors that are relevant.

57 It is sufficient to note that I have turned my mind to each of them in considering the matters set out in the section. I observe that in determining what parenting orders are to be made, the best interests of the children are the paramount consideration, the legislation sets out the various primary and additional considerations to be taken into account and that, finally, circumspection with which findings on an interim basis can be made are well-established.

58 Nevertheless, in interim proceedings, the Court is frequently required to weigh the probabilities of competing claims and the likely impact on children, in the event that a controversial assertion was acted upon or rejected. Evidence may not simply be disregarded, merely because the facts are in dispute, leaving the interim determination to be made, solely, by reference to the agreed facts. As I have indicated, there is a significant amount of factual information in dispute.

Discussions and Conclusions

59 At this stage, it is clear the children have a close and secure attachment with their mother, corroborated by the report of the Single Expert.

60 I am unable at this time to make findings about the nature of the father's relationship with the children. The difficulties in that relationship have been ventilated by the Single Expert. I proceed on the basis that it is in the children's best interests to have a meaningful relationship with their father, subject to the need to protect them from harm.

61 I have already summarised and do not intend to repeat the concerns that have been raised by the Single Expert, and echoed in the submissions made by the mother and the ICL, that the greatest risk of harm to the children is the divided loyalty and their father's ongoing denigration of the mother to, and in their presence.

62 There has been a Violence Restraining Order in place for the mother's protection.

63 The mother says the father's behaviour is tantamount to stalking and he has continued to behave in a manner that could best be described as obsessive, coercive and controlling. If the father were to be found responsible for the conduct to which the mother has referred, then that would readily fall within the definition of family violence. On an interim basis, I am unable to make any findings in that regard.

64 It is clear, based on the evidence, that the father is not complying with the orders of the Court. That was confirmed by the father.

65 I agree with the submissions of the ICL. The father's submissions appear to corroborate the views of the Single Expert, that he lacks insight into his behaviour, fails to respect the orders and does not consider himself bound by them.

66 I have already referred to the ages of the children, and to their personalities.

67 I appreciate from the father's submissions that he loves the children and desperately wants to have a relationship with them.

68 The mother is not seeking to suspend all contact between the children and their father. She seeks to support their relationship, but reduce the level of contact, in an effort to ultimately improve the children's relationship with the father. She wants to relieve them from some of the burden they continue to experience, as a result of being the subject of ongoing denigration and discussion by the father.

69 The orders that are proposed will have an effect of reducing the father's contact with the children. The likely effect of the orders will be to reduce the father's contact with the children to electronic contact only, once a week. The balance of the orders will not reduce the father's contact, noting the present orders provide for supervised contact, and there are no arrangements in place for that time.

70I have already referred to the expressed views of Child B and Child A. While the father says Child B has said she wants him to take her to and from the train station, I observe Child B expressed to the Single Expert she told her father what he wanted to hear, as opposed to what she wanted.

71Child B has made it clear to the expert that she would like to see her father, provided someone else was present.

72 To date the mother has made major long-term decisions for the children, pursuant to the interim orders for sole parental responsibility.

73 There are practical difficulties in relation to the children spending time with the father because he has not complied with orders for supervised time.

74 At this time, I am unable to make any findings about the capacity of either parent to provide for the children's needs. I am further unable to make findings as to each parent's attitude towards the children and the responsibilities of parenthood, as demonstrated by them. I have already recorded the positive observations made by the Single Expert about the mother's capacity and his concerns about the father's lack of capacity.

75 I am unable to make any findings about the capacity of each parent to promote the children's relationship with the other.

76In light of the history of these proceedings, a final hearing appears inevitable.

CONCLUSION

77 In light of the recommendations made by the Single Expert, I am readily satisfied that the orders proposed by the mother and those supported by the ICL are in the best interests of the children and will try to protect them from harm. I accept that the orders attempt to put in place arrangements by which the children will continue to be able to maintain a relationship with their father, but ensure they are protected from harm.

78 I appreciate the father will find the decision to be disappointing. I consider the father would benefit from the opportunity to properly reflect on the report of the Single Expert and take advice.

79 The Single Expert has made a number of specific recommendations to the father, through which, ultimately, he can be a better parent to the children. That would be in the best interests of the children.

80 I hope the father takes on board the recommendations made by the Single Expert, and, in particular, the comments urging the father not to condemn the report outright but, rather, to find things he can use to change his management of the family situation so he can attempt to co-parent with the mother and develop his relationship with the children. Mr A urged the father to pause and not to get angry. I echo those comments.

81 For those brief Reasons, I am satisfied it is in the children's best interests to make orders in terms sought by the mother and the ICL.

Orders

1.By consent, the parties, solicitors, Independent Children's Lawyer and Single Expert (if appointed) have permission to inspect the subpoenaed documents received from the Department of Communities, being number 6 on the Subpoena Master Sheet.

2.By consent, the parties, solicitors, Independent Children's Lawyer and Single Expert (if appointed) have permission to copy the subpoenaed documents received from [Telecommunications Company A], being number 8 on the Subpoena Master Sheet.

3.The subpoenaed documents be retained until further order of the Court.

4.The father's, [MR GARCON], Form 2 application, affidavit and exemption handed up in Court will be accepted for filing by consent and placed on the Court file.

5.The Minute of Proposed Orders Sought by the mother, [MS GARCON], and agreed to by the Independent Children's Lawyer will be accepted for filing and placed on the Court file.

6.By no later 3 November 2020, the father is to file and serve:

(a)a minute setting out with precision the final orders he seeks;

(b)a single standalone affidavit setting out the whole of that party's evidence in chief for the purposes of the trial, including no more than 15 annexures;

(c)an affidavit of each witness, including no more than 5 annexures attached to each affidavit;

(d)a list containing the names of any proposed witness who has refused to provide an affidavit; and

(e)a written undertaking as to disclosure in the form set out in the Family Law Rules 2004 (Cth), attaching each party's list of disclosure documents.

7.In the event the father fails to comply with the preceding order, then the file be referred to Justice Tyson in Chambers for an order to be made dismissing the father's Form 1A response filed [in] November 2016 without further notice to the parties and the mother and the Independent Children's Lawyer then have leave to proceed on an undefended basis.

8.The proceedings be adjourned for further directions as to the ongoing trial in the proceedings on 4 November 2020 at 2:15pm before Justice Tyson.

9.The Form 2 application of the father be dismissed.

10.The trial listed to commence today be and is hereby vacated.

11.By consent, the father's contempt application filed [in] June 2018 be and is hereby dismissed.

12.By consent, the father's contravention applications filed [in] January and [in] February 2018 be and are hereby dismissed.

13.By consent, the objection to subpoena be adjourned to 4 November 2020.

14.By consent, as between the mother and the Independent Children's Lawyer only:

15.Until further order, paragraph 5 of the Orders made [in] November 2017 be varied as follows:

(a)delete the words 'and Saturday'; and

(b)after the 'Wednesday', insert the words 'and on the children's birthdays, the father's birthday, Father's Day and Christmas Day'.

16.Until further order, the father be restrained by injunction and an injunction granted restraining him from:

(a)texting, emailing or contacting the child, [CHILD B], born [in] 20017 (sic), via any social media platform;

(b)approaching or being within 50 metres of the children, [Child B] and [CHILD C], born [in] 2013; and

(c)requesting any third parties, including but not limited to, persons from [Business A], to communicate or attempt to communicate with the children by whatever means, on his behalf.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

5 NOVEMBER 2020