Garrido & Garrido
[2024] FedCFamC2F 634
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garrido & Garrido [2024] FedCFamC2F 634
File number(s): HBC 242 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – parenting – ex tempore reasons – application for final consent orders to be made at close of mother’s case - whether proposed consent minute of final orders in the best interests of the child – cessation of time between father and one child – whether court need be satisfied orders are in children’s best interest – whether alleged unacceptable risk exists – nature and scope of duty of court when making parenting orders – Division 12A of Part VII – final consent orders made Legislation: Family Law Act 1975 (Cth) Cases cited: Lainhart & Ellinson [2023] FedCFamC1A 200 Division: Division 2 Family Law Number of paragraphs: 27 Date of hearing: 6-8 May 2024 Place: Hobart Counsel for the Applicant: Mr Trezise Solicitor for the Applicant: Butler McIntyre & Butler Counsel for the Respondent: Mr Scott Solicitor for the Respondent: Storm Bay Law Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Higgs, Dobson Mitchell Allport ORDERS
HBC 242 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GARRIDO
Applicant
AND: MR GARRIDO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 MAY 2024
BY CONSENT, THE COURT ORDERS THAT:
1.There be orders, declarations and notations made in terms of the document entitled “Minute of Consent Order”, attached hereto and marked “A”, signed by the parties and the counsel for the parties and the Independent Children's Lawyer and dated 8 May 2024, including amendments pronounced by the Court on 14 May 2024 with the agreement of all parties.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
“A”
MINUTE OF CONSENT ORDER
Recitals
THE COURT NOTES THAT:
A.This is a parenting Order made by consent between the Applicant Mother (“Ms Garrido”), the Respondent Father (“Mr Garrido”) (collectively, “the Parents”), and the Independent Children’s Lawyer (“ICL”) (collectively, “the Parties”).
B.This Order concerns the children X (born 2010) (“X”) and Y (born 2011) (“Y”) (collectively, “the Children”).
C.In arriving at this Order, the Parties have had the benefit of receiving a Single Expert Report from Dr B dated 18 December 2023 (“the Single Expert Report”) and hearing further evidence from Dr B under cross-examination during the final hearing of this matter.
D.The Parties agree and recognise that the arrangements set out in this Order are in the best interests of the Children.
ON A FINAL BASIS AND BY CONSENT BETWEEN THE PARTIES IT IS ORDERED THAT:
1.The Orders of the Order dated 7 May 2019 are hereby discharged.
Parental Responsibility
2.Ms Garrido will have sole parental responsibility for the Children.
X
3.X will live with Ms Garrido in Tasmania.
4.X will spend time and communicate with Mr Garrido in accordance with X’s expressed wishes.
5.For the purposes of Order 4 above:
(a)X is at liberty to initiate communication with Mr Garrido by telephone call, text message, email, or other form of communication at any time she wishes to.
(b)Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Garrido is restrained by injunction from:
(i)Approaching, going or loitering within 50m of X at any time, except in accordance with X’s express wishes as communicated by her in accordance with Order 4;
(ii)Directly or indirectly initiating communication with X at any time and by any means except pursuant to Order 6 below (that is, communicating with X in a manner which is not in direct response to communication initiated by X with the Father);
(iii)Approaching or communicating with Ms Garrido to enquire whether X has expressed a wish to spend time or communicate with him,
(iv)Directly or indirectly communicating with Y in any manner to enquire whether X has expressed a wish to spend time or communicate with him.
(c)“[X’s] express wishes” mean a wish or request communicated by X, or by Ms Garrido on X’s behalf, in writing (including text message or email) to Mr Garrido explicitly stating that she would like to spend time or communicate with him.
(d)Where X indicates to Ms Garrido that she wishes to spend time or communicate with Mr Garrido, Ms Garrido will:
(i)Notify Mr Garrido of this in writing unless Ms Garrido is satisfied that X has already communicated her wishes to Mr Garrido directly; and
(ii)Do all such things necessary to facilitate time between X and Mr Garrido in accordance with X’s wishes.
6.Mr Garrido is at liberty to send one A6 sized greeting card and one gift of a value of no greater than $250.00 and no larger than 310 x 225 x 110 mm (the size of an A4 paper box) to X on each of the following occasions:
(a)Christmas,
(b)X’s birthday, and
(c)Easter
And for that purpose Mr Garrido will post the gifts to X at Ms Garrido’s postal address.
7.For the purposes of Order 6 above, Ms Garrido will ensure that X receives the gifts.
Y
8.Y will live with Ms Garrido in Tasmania.
9.Y will spend time with Mr Garrido on Wednesday 15 May 2024 from the conclusion of school until 8.00pm pursuant to the following:
(a)Mr Garrido is to deliver Y to front of the driveway at the Mother’s home at the conclusion of this time and Mr Garrido must immediately ensure he does all things necessary to facilitate Y exiting his car within 2 minutes of his arrival;
(b)Mr Garrido is restrained from having any third party family members or friends present during his time with Y.
10.Following the time in Order 9 above, Y will not spend time or communicate with Mr Garrido.
11.For the purposes of Order 10 the Parents are restrained from discussing the reasons for the suspension in time between Y and Mr Garrido, and are limited to explaining to Y that the arrangements have been agreed upon by Ms Garrido and Mr Garrido together because they consider the arrangements to be in Y’s best interests.
12.Within 7 days of this Order being made, the ICL will meet with Y to explain this Order to Y, NOTING THAT the ICL will ensure that this discussion takes place with another independent adult with whom Y is familiar and comfortable, such as one of her teachers or her psychologist.
13.Ms Garrido will do all such things and sign all such documents necessary to engage Y with the Children and Young Persons Program (“CHYPP”).
14.Ms Garrido must comply with CHYPP’s reasonable directions including as to:
(a)The frequency, length, date and time of appointments for Y,
(b)The manner or method of treatment for Y, and
(c)Y’s engagement with further services, programs, or medical professionals.
15.From the date of this Order, Mr Garrido is restrained by injunction from communicating with Y at any time and by any means except the purposes of sending one A6 sized greeting card and one gift of a value of no greater than $250.00 and no larger than 310 x 225 x 110 mm (the size of an A4 paper box) to Y on each of the following occasions:
(a)Christmas,
(b)Y’s birthday, and
(c)Easter
And for that purpose Mr Garrido will post the gifts to Y at Ms Garrido’s postal address.
16.For the purposes of Order 15 above, Ms Garrido will ensure that Y receives the gifts.
Communication
17.Each parent will keep the other informed in writing of his/her postal address and mobile phone number and will notify the other parent of any changes to those details within 24 hours of a change occurring. Where no notification is given each parent is at liberty to assume there have been no changes to those details.
18.The parents will communicate using text message NOTING THAT the only circumstance in which Mr Garrido would need to initiate contact with Ms Garrido is in the event of his own genuine medical emergency (i.e. he is terminally unwell) given that:
(a)Mr Garrido will not spend any time or communicate with Y,
(b)Ms Garrido has sole parental responsibility for the Children,
(c)Mr Garrido is not permitted to initiate contact with Ms Garrido to enquire about X’s wishes.
Protective Orders
19.Except as expressly provided for in this Order, pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the Children and Ms Garrido, Mr Garrido is restrained from entering onto Ms Garrido’s place of residence or coming within a 100‑metre radius of the boundary of that property NOTING her current residential address is C Street, Town D in the State of Tasmania.
20.Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the Children and Ms Garrido, Mr Garrido is restrained from entering onto the Children’s school or coming within a 100-metre radius of the boundary NOTING the Children’s current school is E School.
21.Except as expressly provided for in this Order, pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the Children and Ms Garrido, Mr Garrido is restrained from making contact with the Ms Garrido or the Children directly or indirectly including by electronic or written means or in person except as expressly provided for within this Order.
22.Mr Garrido is restrained from requesting or instructing Tasmania Police to conduct welfare checks on either of the children or Ms Garrido.
Independent Children’s Lawyer
23.Subject to a grant of Legal Aid funding, the appointment of the ICL will continue for a period of 12 months from the date of this Order.
24.The ICL has leave to provide a copy of each of the following documents to CHYPP, Y’s treating psychologist, Ms Garrido’s treating psychologist or counsellor, and Mr Garrido’s Psychologist:
(a)Each of parents’ trial affidavits;
(b)The Single Expert Report;
(c)The s 69ZW responses from Tasmania Police and Child Safety Services; and
(d)A copy of this Order.
25.The ICL has leave to provide a copy of this Order to E School.
26.This Order operates as a general authority for the ICL to communicate directly with CHYPP and/or Y’s psychologist.
AND THE COURT NOTES that the parties consent to these orders on the basis that they are currently in the children’s best interests.
AND THE COURT FURTHER NOTES that Mr Garrido intends to take all reasonable steps including but not limited to the following, to address the risk issues raised in the Single Expert’s Report:
(a)Enrol in and complete the Tuning Into Teens course or an equivalent program;
(b)Enrol in and complete the Separated Parenting Program; and
(c)Engage with a clinical psychologist (“the Psychologist”) for the purpose of addressing:
(i)His perpetration, intentionally or otherwise, of parental alienation of Y from Ms Garrido;
(ii)His perpetration, intentionally or otherwise, of coercive and controlling behaviour towards Ms Garrido;
(iii)His problematic personality traits as identified by Dr B including histrionic personality traits, narcissistic personality traits, and antisocial personality traits;
(iv)Any other matters which the psychologist considers is likely to assist Mr Garrido in the context of the recommendations of Dr B.
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI
On 8 May 2024 I considered an application to make final orders by consent partway through a defended hearing. I now deliver my reasons for judgment on that application.
These defended parenting proceedings were listed for hearing from 6 to 8 May 2024. They concern two children, X and Y, who have previously been the subject of final parenting Orders made by the Court on 7 May 2019.
The current proceedings were commenced by the mother, Ms Garrido, in March 2023 after the father, Mr Garrido, failed to return Y to the mother's care in accordance with the enforceable orders that had been made on 7 May 2019. The mother's case commenced on 6 May and concluded on 7 May. The Independent Children's Lawyer (“the ICL”) called Dr B, the single expert, and by agreement between the parties she gave evidence on 7 May prior to the conclusion of the father's case.
At the conclusion of Dr B’s evidence and partway through cross-examination of the father, I was advised by counsel for the ICL that the parties had reached an agreement in principle about the final orders they wished the Court to make. Counsel requested an adjournment overnight before the father's case continued to prepare a minute of proposed consent orders.
Upon resuming the hearing on 8 May and being presented with the minute of consent orders, I considered the terms of the proposed orders. The consent minute contemplated some orders that were obviously in the best interests of the children and for which there was ample supporting evidence. They related to the children living with the mother and the mother having sole parental responsibility for both children. These arrangements reflected the terms of the 2019 parenting orders.
The proposed consent orders also provided for X to spend time with the father according to her wishes and for the cessation of Y's time with the father. In respect of Y spending time with the father the proposed orders then, in effect, delegated authority to the single expert for future determination, conditional on the father doing certain things, the question of whether Y should spend time with the father in the future. I declined to make the proposed orders as doing so would amount to an error of law, per Lainhart & Ellinson [2023] FedCFamC1A 200 at [28] to [33] (“Lainhart & Ellinson”).
After further adjournments and discussions with all counsel and the ICL, the parties presented a further minute of consent orders that they asked the Court to make. I heard submissions from all counsel as to the reasons they said the orders were in the children's best interests, with particular focus on the orders relating to Y.
In summary, the submissions by each counsel were as follows:
(a)The ICL submitted that:
(i)An order for no time with the father would provide Y with time, space and opportunity to engage with therapeutic supports, noting that the Children and Young Persons Program (“CHYPP”) will not engage with her while contact remains between her and the father;
(ii)An order for no time with the father would alleviate Y from the need to rely on herself when with her father, which she appears to do so as to maintain her own psychological and emotional safety, as well as that of her mother and her sister;
(iii)The orders relating to both children would reduce the risk of conflict between the parents as well as between the siblings;
(iv)The orders give the father a chance, having heard the evidence of the single expert, to better himself as a carer of his children;
(v)The Court should be very cautious about the weight it places on the views of Y about her desire to spend time with her father because those views are affected by alienating behaviours and therefore not a proper reflection of her being able to consider them in light of all her circumstances. More specifically, counsel said that what is in Y’s best interests is inconsistent with her views; and
(vi)Supervised contact would not be an appropriate solution as Y struggles in situations where she is watched or is the centre of attention.
(b)Counsel for the father submitted that:
(i)The orders for no time would allow the father to try and address the significant issues raised in Dr B’s evidence;
(ii)As noted by counsel for the ICL, CHYPP will not undertake counselling or other supports for Y unless and until such time as she is not spending time with the father;
(iii)The orders still provided for some limited ongoing relationship between the father and Y by allowing him to send her via post to the mother's address a present and card on designated special occasions; and
(iv)The orders would act as a circuit-breaker to address the conflict between the children.
(c)Counsel for the mother adopted the submissions of other counsel and claimed that the father's submissions in particular should carry great weight, given that it is the father who would be most aggrieved by making of the order ceasing time between himself and Y. In addition, he submitted:
(i)That he was not being glib during cross-examination of the father when he put to him that he had had a “road to Damascus” moment, but it was clear that there had been a very major and beneficial shift in his attitudes, which could only be of long term benefit to both Y and X;
(ii)Relying on Lainhart & Ellinson, he emphasised that the job of the Court in the exercise of its powers is to quell the controversy between the parties;
(iii)That the controversy between the parties would be quelled by the making of the proposed orders and that the parties did not want to complete the trial or adduce any more evidence, and “to be blunt, the parties want to get out of here”;
(iv)That there would be benefit to the children, particularly Y, in the parents being able to say that they reached agreement on the orders themselves rather than it being what the Court determined; and
(v)The parties could not be assured that further proceedings would not be brought but the Court cannot speculate on that to the detriment of the agreement the parties have reached.
That summarises the full force and effect of the submissions made. They are effectively verbatim from counsel's submissions, subject to editing for brevity.
EVALUATION
I turn to my evaluation. I have deliberated over whether I should make the consent orders with a degree of angst for the following reasons. The submissions by the ICL about the proposed orders relating to Y have temporal attraction and will remove her from the immediate emotional harm that Dr B’s unchallenged opinion identifies as alienation of her from her mother by the father. Curiously, such alienation has been identified as occurring with respect to one child, but not both.
However, as stated by Dr B in her oral evidence, the complete cessation of time between Y and the father also entails the risk of emotional harm to her related to the termination of a mutually loving and meaningful relationship with the father, and the prospect that later in life she will blame the mother for depriving her of the opportunity to continue her relationship with the father.
The extent of this risk of latent emotional harm to Y is not capable of being fully assessed at this time because I have not heard the father's evidence in full, and I have concerns about his motives and reasons for consenting to these orders now when he has previously taken a steadfast view that he seeks orders that would allow him to continue spending time with Y. Frankly, he may have simply been worn down or pressured by the financial costs of completing the trial.
I may be able to infer from the father's evidence some conscious acceptance of Dr B’s views. As he has been represented by counsel during the defended hearing and represented by his current legal practitioner since December 2023, it may be that he now latently accepts that he needs to gain reflective capacity on the impact of how he communicates and behaves interpersonally, and now seeks to alter the way he communicates and behaves so that he does not adversely impact the children and the mother.
It is trite to observe that interpersonal conflict is not always caused by one party alone or caused because a person has bad motives or intends harm to others. It is possible that the father's behaviours, as extensively reported by Dr B, are due to an undiagnosed disorder or condition. This became apparent from the questions I asked of Dr B.
I have concerns that the consent orders, if made, will not serve the long term best interests of Y and that there may have been alternative orders that could have served both the short term and long term best interests. Regrettably, the parties’ request that consent orders be made has deprived the opportunity of a full ventilation of the evidence and the making of ultimate findings. This means there is a fair chance, in my view, that the family will again be exposed to further proceedings in this Court at a future time.
However, I cannot force the parties to complete the defended hearing and so being satisfied that there is sufficient evidence to justify a termination of Y’s time with the father for a period, I will make the orders sought by consent, including the agreed amendment of paragraph 15 of the minute of consent orders that requires the deletion of the words “[i]n the first 12 months” in line 1.
Finally, I address the submissions of counsel for the mother. I consider those submissions unhelpful to the Court, misconceived and designed to pressure the Court to make orders according to the minute of consent. In particular, the submissions are misconceived as to the nature and scope of the duty of a judge presiding over parenting disputes which necessarily are “child related proceedings” within the meaning of Part VII, Division 12A of the Family Law Act 1975 (“the Act”).
Counsel for the mother cited Lainhart & Ellinson in support of the submissions he made, but that reliance is not appropriate in this case because the Court of Appeal was addressing the duty of the Court in a completely different context. Namely, where the Court had conducted a defended hearing, delivered reasons for judgment and made orders not proposed by a party but intended to address shortcomings in the evidence and the expert's views about risks. The Court of Appeal disapproved of this course because the primary judge was required to make findings and then pronounce orders consistent with the dispute between the parties. That is an entirely different scenario to the situation before me where I was part-heard in a defended matter, the mother’s case had closed and the father’s case had not been concluded.
In child related proceedings a judge has express duties to give effect to the principles set out in Division 12A of the Act. Amongst the duties expressed in s 69ZQ of the Act is a duty to decide if the issues require full investigation and hearing or can be dealt with summarily.
The ultimate issue in this case, so far as is relevant to the orders concerning Y, is whether it is in her best interests to make a final order that she not spend time with the father. That is a parenting order contemplated by s 60CA of the now amended Act, which commenced on 6 May 2024. The Court must regard the best interests of Y as the paramount consideration when deciding whether to make orders relating to her, whether those orders are sought by consent or otherwise. That is obvious given s 60B of the Act.
Sections 60B, 60CA, 60CC of the Act as amended provide the means by which the Court is to be satisfied that a parenting order is in the best interests of a child, but the provisions are not exhaustive and operate in the context of Division 12A. In my view, these provisions are intended to have application even when parties come to an agreement during the proceedings and invite the Court to make orders by consent. If it were otherwise, the welfare and safety of children would be at risk contrary to the objects of Part VII of the Act, including the Convention on the Rights of the Child that is now emphasised by the amendments.
To illustrate that this is so, an extreme example is useful. For example, if the parties invited the Court to make orders that a child live with a person convicted of sexual abuse of a child, the Court should not be bound to make the orders if it forms the view that the order is not in best interests of the child.
The statutory scheme of the Act makes it plain, in my view, that for as long as there are pending proceedings before the Court, the Court's function and duty when making parenting orders is governed by the overriding objects of Part VII of the Act and the best interests of the child. This is the case even when a proceeding is to be concluded summarily by the making of final orders by consent.
It is correct to observe that s 60CC(4) of the Act provides:
If the Court is considering whether to make an order with the consent of all of the parties to the proceedings the Court may, but is not required, to have regard to all or any of the matters set out in subsections (2) and (3).
But the word “may” in this context does not involve discretion to abandon the best interests of a child in consent order applications. Rather, “may” is enabling and requires the Court to apply the same considerations as set out in subsections (2) and (3) when considering whether to make orders, but always applying its discretionary consideration to those provisions.
In conclusion, in this instance with some reservation, I have been persuaded to make the orders in the consent minute because, I emphasise, at this time I largely accept the submissions of the ICL and am sufficiently satisfied that the orders sought are in the best interests of the children, including Y, at this juncture. I also suspect very strongly that if I do not make the orders then the father may discontinue, leaving the state of affairs to be exceptionally unsatisfactory.
For all of the reasons I have just articulated I pronounce final orders according to the minute of consent dated 8 May 2024 signed by the parties, counsel for the parties and the ICL, with the following amendments which are necessary to give efficacy to the orders and which I suspect will not be opposed:
(a)At paragraph 9 the date should be amended to “15 May”; and
(b)As I mentioned earlier in my reasons, at paragraph 15 the words “in the first 12 months” will be deleted.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 May 2024
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