Gerardo & Gerardo (No 3)
[2024] FedCFamC2F 1802
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gerardo & Gerardo (No 3) [2024] FedCFamC2F 1802
File number: SYC 7195 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks a suite of interim parenting orders including that the children live with her, that she is granted sole parental responsibility and that the father is restrained from contacting the mother or children – Where allegations of parental alienation are a live issue and require determination at final hearing – Where the father challenges the opinions of the single expert – Where an order changing the children’s place of residence has the potential to cause significant emotional distress – Where there is no evidence that the children are at an ongoing risk in respect to their physical safety in the mother’s care – Where the supervision reports are overwhelmingly positive – Orders made allowing the children to spend additional time with the mother on an unsupervised basis.
FAMILY LAW – PRACTICE AND PROCEDURE – Harman undertaking – Where criminal proceedings are on foot – Where the mother sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – Where the application is opposed by the father – Where the mother seeks to use the documents in aid of her defence in criminal proceedings – Consideration of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the Court is satisfied that special circumstances exist – Order releasing parties from Harman undertaking.
Legislation: Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(1)(a)
Family Law Act 1975 (Cth) Pt VII, ss 43, 60, 68, 95
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
United Nations Convention on the Rights of the Child arts 3, 5, 12, 13
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
CF v Secretary of State for the Home Department [2004] EWHC 111; [2004] 2 FLR 517
Cowling & Cowling (1998) FLC 92-801; [1998] FamCA 19
Crest Homes Plc v Marks [1987] AC 829
G (BJ) v G (DL) (2010) 324 DLR (4th) 367 (Yukon Supreme Court)
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Iphostrou & Iphostrou [2011] FamCA 20
Littlefield & Pemble (2023) 67 Fam LR 603; [2023] FedCFamC1A 198
Marvel v Marvel (2010) 240 FLR 367; [2010] FamCAFC 101
Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam)
Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B)
Simmons & Simmons (2023) FLC 94-137; [2023] FedCFamC1A 44
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd and Liberty Funding Pty Ltd v Phoenix Capital Ltd (1992) 38 FCR 217; [1992] FCA 720
SS & AH [2010] FamCAFC 13
Unicomb v Blais [2024] NSWSC 903
Warwickshire County Council v The Mother [2023] EWHC 399 (Fam)
Division: Division 2 Family Law Number of paragraphs: 107 Date of hearing: 5 November 2024; 13 December 2024 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: York Law Family Law Specialists Counsel for the Respondent: Mr Katsinas Solicitor for the Respondent: One Law Group Pty Ltd Solicitor for the Independent Children’s Lawyer: Ms Wilkins, Phillip A Wilkins & Associates ORDERS
SYC 7195 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GERARDO
Applicant
AND: MR GERARDO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.Orders 14 to 19 of the orders made by Judge Stewart on 29 November 2023 are discharged.
2.The children, X born in 2009, Y born in 2012 and Z born in 2014, shall spend time with the mother as follows:
(a)For a period of four (4) weeks each Saturday and Sunday from 8.00 am until 6.00 pm;
(b)Thereafter each weekend from 8.00 am on Saturday until 6.00 pm on Sunday; and
(c)At any such other times as agreed between the parents in writing.
3.To facilitate the children’s time with the mother in accordance with Order 2, changeover shall occur at Suburb B McDonalds with changeover to be supervised by C Contact Service and the costs be shared equally between the parents.
4.Parties are granted liberty to apply to chambers if the reserved judgment by Judge Kirton is not delivered by 5.00 pm on 20 December 2024.
5.The mother’s Application in a Proceeding filed on 12 December 2024 is upheld in part in respect to paragraphs 30, 35 and 39, save in respect to the second sentence of paragraph 39, of the mother’s affidavit filed 12 December 2024 and is otherwise dismissed with no order as to costs.
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).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
On 16 August 2024, at a Compliance and Readiness Hearing before myself, I granted the applicant mother, Ms Gerardo, liberty to file an Application in a Proceeding concerning interim parenting and property orders. On 30 August 2024, Ms Gerardo filed an Application in a Proceeding (“the Application”) seeking interim parenting and property orders. Mr Gerardo, the respondent father, seeks that the Application is dismissed, that the applicant pay his costs and that he is granted leave to rely on his affidavit which exceeds 10 pages and contains more than five annexures.
In circumstances where there are multiple applications on foot in this Court, it is convenient to refer to the parties as the mother and father in these written reasons.
THE PARTIES’ RESPECTIVE APPLICATIONS
The mother’s application
By way of summary, the mother seeks the following orders:
Living arrangements and parental responsibility
·The children are to live with the mother.
·The mother is granted sole parental responsibility for decisions regarding schooling, medical and psychological treatment, and extra-curricular activities.
·The mother must inform the father in writing about decisions, invite his comments, consider them, and inform him of the final decision.
Spend time arrangements and communication moratorium
·The father must deliver the children to the mother at Suburb B McDonald’s, supervised by C Contact Service, with costs shared equally.
·For eight weeks, the father is restrained from contacting or communicating with the children by any means, including through relatives or social media.
·From week five, the children may speak with the father twice a week via speakerphone or video call, facilitated by the mother, with restrictions on discussion topics and for no longer than 10 minutes.
·After compliance with initial communication orders, the children may spend supervised time with the father on Sundays, with specific conditions and restrictions.
·After the initial period, the children may spend supervised time with the father on Sundays from 9.00 am to 6.00 pm, with similar conditions and restrictions.
·The father is responsible for supervision costs, and the supervision must occur at a public place nominated by the mother.
Injunctions
·Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the father is restrained from contacting the mother or children, approaching within 500 metres of specified locations, or removing the children from the mother’s care.
·The injunction includes a power of arrest without warrant under s 68C of the Act.
·The injunction remains in force until further order, and prevails over any ADVO.
Release from Harman undertaking
·The mother seeks release from the Harman undertaking to use affidavits, expert reports and documents produced under subpoena, in her defence against charges of common assault.
Children’s psychologist
·The mother be granted liberty to engage a psychologist for the children, as recommended by the single expert, and that the costs of the psychologist be shared between the parties.
Financial
·The mother’s Application for Review filed on 4 January 2024 is to be reheard, and the previous order reserving judgment made by Judge Kirton be discharged.
·In the alternative to the above, the father is ordered to pay the mother $400,000 in “interim costs”, with specific instructions for fund allocation and repayment of a loan.
·The father must ensure mortgage repayments and outgoings on the former matrimonial home are met.
Costs
·The father is ordered to pay the mother’s costs related to this Application on an indemnity basis.
The father’s response
Aside from seeking leave to rely on two affidavits, the father seeks an order for the mother’s Application to be dismissed, with costs.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) seeks the following orders:
1.Orders 14-19 of the orders made by Judge Stewart on 29 November 2023 be discharged.
2.[The children] shall spend time with the mother as follows:
a. For a period of FOUR (4) weeks each Saturday and Sunday from 8am until 6pm;
b. Thereafter each weekend from 8am Saturday until 6pm Sunday; and
c. At any such other times as agreed between the parents in writing.
3.To facilitate the children’s time with the mother in accordance with order 2, changeover shall occur at [Suburb B] McDonalds with changeover to supervised by [C Contact Service] and the costs be shared equally between the parents.
4.Within 7 days, the parents shall do all acts and things necessary to engage the children in therapy with [Ms D]. Each parent shall facilitate each of the children’s attendance at the frequency recommended by the [Ms D] and the costs shall be shared equally by the parents.
5.The children’s attendance upon [Ms D] is non-reportable.
6.In the event [Ms D] is unavailable to assist, the children shall attend upon such other psychologist/therapist as nominated by the ICL.
7.Each parent shall make the children available to meet with the ICL at such times and dates as arranged by the ICL.
ISSUES TO BE DETERMINED
This judgment will first provide reasons for releasing the parties from the Harman undertaking. Secondly, it will address the parenting aspects of the mother’s application. In circumstances where there is substantial overlap in the property aspect of this Application and the mother’s Application for Review filed 4 January 2024, which has already been heard by Judge Kirton, I decline to determine that aspect of the case which has already been heard. Doing so, would be adverse to the interests of judicial economy. Furthermore, in respect to the mother’s Review Application, the Court has been advised that judgment will be delivered shortly.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
·Case Outline filed 25 October 2024
·Application in a Proceeding filed 30 August 2024
·Affidavit of Ms Gerardo (Parenting) filed 16 September 2024
·Affidavit of Ms Gerardo (Property) filed 16 September 2024
·Affidavit of Mr E filed 16 September 2024
·Provisionally admitted CCTV footage of the father and the family dog (Exhibit “M1”)
·Mother’s proposed Minute of Order dated 5 November 2024
·Written Outline of Submissions dated 5 November 2024
·Tender bundle
I note that the parties have agreed to update the facts in this matter, having regard to paragraphs 30, 35 and 39 of the mother’s affidavit filed on 12 December 2024 – save to the extent that sentence two of paragraph 39 will not be read.
The father relies upon the following documents:
·Case Outline filed 4 November 2024
·Response to Application in a Proceeding filed 1 November 2024
·Affidavit of Mr Gerardo filed 1 November 2024
·Tender bundle
The ICL relies upon the following documents:
·Case Outline filed 4 November 2024
·Single Expert Report of Dr F filed 15 August 2024
·ICL’s proposed Minute of Order dated 5 November 2024
BACKGROUND
I provide the following brief outline of facts and contentions insofar as they are relevant to the issues that require determination.
The mother, Ms Gerardo, was born in 1985 and is currently 39 years of age. The father, Mr Gerardo, was born in 1978 and is currently 45 years of age. The parties married in 2004 and separated on a final basis in September 2023.
There are three children to the relationship. They are: X, who is currently 15 years old, Y who is currently 12 years old and Z, who is currently 10 years old (collectively, “the children”). The children currently live with the father at the former matrimonial home located at G Street, Suburb H.
The parties’ separation and care of the children post-separation
The parties separated in September 2023. The following events occurred on that day:
(a)The father was arrested and charged with domestic violence offences and of cruelty to an animal, involving the parties’ pet dog, who has since been removed from the family home by an animal welfare group. In respect to the latter charge, the father claims that his actions were for “behaviour management” of the dog as opposed to gratuitous cruelty.
(b)An interim Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother and the children.
(c)The mother contends that while X and Z were left home unattended, they were collected by their cousin before the mother returned home.
On the following day, the mother contends that friends of the father collected Y to take her to an event but Y was not returned to the mother’s care, as promised.
On 27 September 2023, the mother filed her Initiating Application for Final Orders in relation to property and parenting in circumstances where the children were not returned to her care following the event which had been attended a few days earlier.
On 5 October 2023, interim parenting orders were made by a Senior Judicial Registrar, which provided that the children would live with the father and that the mother would spend time with the children each alternate Sunday for three hours subject to professional supervision at a contact centre. The mother filed an Application for Review of these orders and on 29 November 2023 a judge of this Court ordered an increase in time of two hours, that the time occur with a professional supervisor of the ICL’s choosing and electronic communication between the mother and children to occur three times per week for a period of 30 minutes.
The father contends that, from the date of the parties’ separation, the mother refused to allow the children and the father to attend upon the former matrimonial home to collect their personal belongings, despite an issued Recovery Order by Suburb J Local Court and police attendance on the premises on three consecutive days. The father sought exclusive possession of the former matrimonial home and was granted this in orders made on 30 November 2023. Since that date, the father and the children have resided at the former matrimonial home.
The mother contends, in her affidavit filed 16 September 2024, that despite the interim court orders in place, the father has made it difficult to spend time with the children. The mother contends that the father has done this by raising issues about venues, failing to engage with the nominated professional supervisor, not agreeing to times or suspending all of the children’s scheduled time with the mother, even if only one of the children could not attend the supervision. As a result, the mother was left paying for supervision that did not occur. The mother also contends that the telecommunication with the children has, at times, not been complied with or the calls are very short. The mother contends that the father has not been supportive of the children’s relationship with the mother, such that the children are withdrawn during their time together or resentful at having to spend time with their mother at all. The father denies these allegations and sets out his reasons for why time between the children and the mother did not proceed as scheduled on certain days in his sworn evidence.
On 5 February 2024, an order was made, by consent, that the parties attend family therapy and that a single expert be appointed for the purpose of preparing a family report. The parties and children attended upon interviews with the single expert, Dr F. The Single Expert Report was released on 15 August 2024. In his Report, Dr F raised concerns about the behaviour of both parents, namely the mother’s previous verbal abuse of the children prior to separation,[1] and allegations of the father being physically violent to the family dog in front of the children and mother,[2] and further, that the father has failed to support the children’s relationship with the mother.[3]
[1] Single Expert Report filed 15 August 2024, at paragraph 176, Dr F states that the “verbal abuse by [the mother] has been extraordinarily harmful and has contributed to the children losing trust in her”.
[2] Single Expert Report filed 15 August 2024, at paragraph 139, Dr F states that “[the father] consistently minimised his treatment of the dog, yet the video evidence reveals his actions to be abhorrent, demonstrating extreme and undeniable violence towards the animal”. See also, Dr F’s comment at paragraph 22, “[the father’s] actions are both repugnant and reprehensible and furthermore, his unwillingness to accept his shockingly aggressive and violent behaviour towards another living thing is of deep concern”.
[3] Single Expert Report filed 15 August 2024, at paragraph 160, Dr F discusses how it is “highly improbable that [the father] will facilitate such a relationship between the children and their mother, as it is evident that he has the ability and wherewithal to fracture familial relationships, undermine any positive steps made, in order to remain the aligned parent and maintain a position of control”.
Criminal proceedings
There are criminal proceedings on foot, with both parties being charged with various offences as set out above. The parties each contend that the other party has made false allegations or pressured the children to make false allegations in this regard.
Relevantly for the purpose of these proceedings, in mid-2024, the criminal proceedings were listed for hearing and on that day the father made an application for adjournment on the basis that he needed to make an application to this Court to be released from the Harman undertaking as the father wishes to deploy evidence from the family law proceedings in the criminal proceedings. The magistrate granted the adjournment and listed the matter for hearing in late 2024. The mother contends that the hearing has now been adjourned further to early 2025.
In early 2024, the mother was charged with common assault against two of the children, Z and Y, these being:
Sequence 1 – [Offence] - [in mid] 2021;
(a) Sequence 2 – [Offence] - [in early] 2021 and [late] 2021;
(b) Sequence 3 – [Offence] - [in early] 2022 and [late] 2022; and
(c) Sequence 4 – [Offence] - [in mid] 2023.
(Mother’s affidavit filed 12 December 2024, paragraph 30)
The mother’s criminal proceedings were listed for hearing in late 2024.
On that day, the mother entered a guilty plea to some of the charges, based on an amended Statement of Facts that the police and the mother agreed to. That agreed statement is Annexure “D” to the mother’s affidavit filed on 12 December 2024.
In late 2024, the sentencing hearing proceeded before a Magistrate. The mother was found guilty of those charges but without proceeding to conviction and with each sequence being dismissed pursuant to s 10(l)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The mother contends that the father pressured the children into making statements to law enforcement authorities, the father denies that allegation.
CONSIDERATION
Release from the Harman undertaking
On 5 November 2024, I made an order releasing both parties from the Harman undertaking, allowing the documents filed and produced in these proceedings to be used in their respective criminal cases. I made those orders in circumstances where the mother’s trial was in late 2024. This judgment will reflect my reasons for doing so.
The mother’s case
The mother contends that her request for permission to use materials from current proceedings in pending cases in the Local Court of New South Wales is uncontroversial, particularly in circumstances where the father has foreshadowed a similar undertaking.
The mother argues that using the materials will contribute to achieving justice in the criminal proceedings. She also asserts, at paragraph 31 of her Written Submissions dated 5 November 2024, that the documents were obtained properly and regularly in the current family law proceedings and there is no prejudice to the father because the documents could be obtained in the criminal proceedings.
The father’s case
The father notes that the mother seeks to use a number of classes of documents in her criminal proceedings which include pleadings, CCTV footage and voice recordings, the Single Expert Report of Dr F, and subpoenaed materials from K Clinic, the animal welfare group, and NSW Police.
At the hearing before me, counsel for the father contended that the documents referred to above would have minimal relevance in the criminal proceedings, particularly in the context of the mother’s common assault charges, and as such, the proposed order sought by her to be released from the Harman undertaking ought not be made (Transcript 5 November 2024, p.44 line 33 to p.45 line 21).
The father relied upon Springfield Nominees Pty Ltd v Bridgelands Securities Ltd and Liberty Funding Pty Ltd v Phoenix Capital Ltd (1992) 38 FCR 217 at [26] to contend that the mother must demonstrate special circumstances to justify the release of documents, with relevant factors including:
… the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant and, perhaps most importantly of all, the likely contribution of the document to achieving justice in the latter proceedings.
The father contends that:
58.Apart from the report of [Dr F] it is not clear which documents and recordings the Wife is referring to and whether in fact those documents have entered the public domain. No assistance can be obtained from the Applicant’s affidavit.
59. The wording “any and all pleadings and recordings” used by the Applicant is too broad to enable the Respondent to appropriately respond. Which documents produced by the entities is sought to be released. It is unknown. It is also unknown how these documents will assist the parties in their criminal proceedings.
60. As far as the report of [Dr F] is concerned, his attitude to the release of the report and the impact it may have upon the children and any prejudice to him has not been obtained. The report of [Dr F] is not complete in the sense that he has failed to respond to questions put by the father’s former solicitors and incomplete in consideration of material and documents which the Mother refused to allow [Dr F] to review. [Dr F] asserts that the children said certain things to him about the assaults at the hands of the mother. The question was posed to [Dr F] about whether the interviews between the parties and children were electronically recorded in any way. These questions still remain unanswered
(Father’s Case Outline filed 4 November 2024)
Disposition
Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides:
6.04 Use of documents
(1)A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2) However:
(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
This rule reflects what is commonly referred to as the ‘Harman undertaking’ or ‘Harman obligation’. That is where “documents prepared for legal proceedings have been served upon another party to those proceedings, and the party so served is treated as having undertaken to the court not to use the documents otherwise than for the purpose of the proceedings” (Hearne v Street (2008) 235 CLR 125 at [1] per Gleeson CJ referring to Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 310 per Lord Scarman).
The legal principles related to the release of a party from the Harman undertaking were not in dispute. In Unicomb v Blais [2024] NSWSC 903 at [254], McGrath J noted those principles derive from what was said in Crest Homes Plc v Marks [1987] AC 829, by Lord Oliver at 860:
… the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. …
McGrath J further observed at [255]–[257]:
The notion of “special circumstances” in [the above] test was then considered by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354, who said at 578–579:
“… As far as the expression ‘special circumstances’ is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? ‘Special’ is one of those words which derive almost all their meaning from the context. … If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceedings should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15 (2), by which leave to file an appeal out of time could be granted ‘for special reasons’. The joint judgement described (at 195) the expression ‘special reasons’ in this rule as:
‘an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period with which an appeal must be filed and served.’
“Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the action in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import. I do not know on what footing one would say that a particular circumstance amongst these relatively rare circumstances would be ‘special’ and another not. I do not think his Lordship intended to fetter the court’s discretion in this way. I think he was using the words ‘special circumstances’ to express the same idea which is expressed in the rule discussed in Jess v Scott (supra) by the words ‘for special reasons’…”
Having analysed what was said in Crest Homes and Holpitt, the principles applied by the court in deciding whether to release the implied undertaking were then classically stated by Wilcox J in Springfield Nominees at 225 as follows:
“… For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
This expression has been repeatedly approved and applied by courts dealing with the question since, specifically by the Full Court of the Federal Court in Liberty Funding, Branson, Sundberg and Allsop JJ saying at [31]:
“In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:
•the nature of the document;
•the circumstances under which the document came into existence;
•the attitude of the author of the document and any prejudice the author may sustain;
•whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
•the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
•the circumstances in which the document came in to the hands of the applicant; and
•most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
(emphasis added)
In this matter, the father was unable to point to any particular prejudice to himself arising from the mother being released from the Harman undertaking. In that respect, he did not refer, for instance, to any intrusion into his privacy as a result of being compelled to produce documentation from the family law proceedings.
Instead, the father’s oral submissions focussed on the potential relevance or, more accurately, irrelevance of the documents to the criminal charges being faced by the mother.
As noted by the Full Court in Littlefield & Pemble (2023) 67 Fam LR 603 at [37]:
… in determining whether or not to give leave to use the material subject to the implied undertaking in other proceedings, the court ought not embark upon a consideration of its admissibility in the other court, or the purpose to which it may be put, as that is properly a matter for the other court (Sahadi [& Savva (2016) FLC 93-704] at [69]).
The exceptionality in the present case is that the mother is facing criminal charges in respect to conduct that will inevitably be the subject of controversy in these proceedings. Equally, it can reasonably be anticipated that one or both of the parties will refer to the outcome of the criminal proceedings as being of relevance to the issues that I will ultimately be required to determine in March 2025, at the final hearing of this matter. Without determining the relevance of the outcome of the criminal proceedings at this stage, it is, in my opinion, in the interests of justice in both these proceedings and the criminal proceedings that the mother be able to rely upon such information as she reasonably considers necessary and appropriate to respond to allegations that she has engaged in mistreatment of the children.
Therefore, to deny the mother of the opportunity to be relieved from the Harman undertaking, would be to compromise her defence (see Chakora & Bhander [2023] FedCFamC1F 127 at [27]). That is, to adopt Wilcox J’s words in Springfield Nominees, a “special feature” of this case.
Accordingly, for those reasons, I determined that it was appropriate to release the mother from the Harman undertaking. Having so released the mother, for similar reasons, I also released the father from that obligation.
THE MOTHER’S APPLICATION FOR PARENTING ORDERS
Legal Principles
In Cowling & Cowling (1998) FLC 92-801 at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
As noted in Goode and Goode (2006) FLC 93-286 at [68], the Court has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou [2011] FamCA 20 at [44], Cronin J said that “[i]n any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact”.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of its responsibility to consider the best interests of the child and, by virtue thereof, issues of risk. In that respect, in SS & AH [2010] FamCAFC 13 at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel v Marvel (2010) 240 FLR 367 at 375.
In Banks & Banks (2015) FLC 93-637 (“Banks”), the Full Court made it clear that a common sense approach should be taken in interim parenting proceedings, having regard to the issues raised by the parties in the proceedings. In that context, at [48]–[50] of Banks, the Full Court stated:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial …
… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis in original)
In this matter, the primary issues agitated by the parties were the following:
(1)Is it desirable for the children to spend an increased amount of time with the mother and, as a related issue, should that time be unsupervised?
(2)Is there a risk to the children of remaining in the primary care of the father in circumstances where, according to the mother, he has been engaging in alienating behaviour?
(3)What weight should be placed upon the views of the children in determining appropriate parenting orders on an interim basis?
(4)Should the children be required to attend therapy?
(5)Should the parties be ordered to make the children available to meet with the ICL?
I will consider each of those respective issues to the extent that the evidence permits in the context of these interim proceedings.
Increased time with the mother
While the father made it clear that he intended to challenge the efficacy of Dr F’s opinions, and that the Report remains “untested”, I did not understand there to be a direct challenge to the following general propositions advanced by Dr F:
·Spending time with their mother can help rebuild trust and emotional bonds that have been strained due to past tensions (Dr F’s Report, paragraph 147).
·The mother’s presence in the life of Y’s is particularly beneficial as she approaches adolescence (Dr F’s Report, paragraph 180). In that respect, the mother is well-positioned to offer guidance and support during this critical developmental phase.
·It is essential for both parents to have a close positive bond with the children and, as such, the children would benefit from spending significant time with their mother and father (Dr F’s Report, paragraphs 160 and 161). Further to this point, Dr F describes the importance of the children having a healthy attachment bond with both parents to provide them with a sense of security and the capacity to develop trusting relationships (Dr F’s Report, paragraph 190).
·The mother’s involvement in the children’s lives and, in particular, their sporting and extracurricular activities can strengthen their bond.
·Ensuring the children have a meaningful relationship with their mother can mitigate the negative effects of past conflicts and contribute to healthier future relationships (Dr F’s Report, paragraphs 189 and 190).
A more controversial issue that will be the subject of determination at final hearing is the extent to which Dr F was satisfied that the mother has taken appropriate steps to address past mental health challenges that have impacted her parenting capacity. In that respect, Dr F opined at paragraph 147 of the Report that the mother has acknowledged her past verbal abuse and is actively working to address these issues through therapy, indicating a commitment to improving her parenting skills and emotional regulation. Additionally, at paragraph 45, Dr F acknowledged the mother’s willingness to facilitate the children having a relationship with their father and her commitment to rebuild trust with the children.
Particularly in circumstances where I will be the judge presiding over the final hearing of this matter, I am reluctant to determine whether the father’s concerns in respect to the veracity of Dr F’s opinion is or, is not, valid. I note, however, that the father has agreed to the mother accompanying the children to a parent-teacher interview without a supervisor being present (Transcript 5 November 2024, p.25 lines 23–32). The fact that, to his credit, he consented to that occurring suggests that he is not overly concerned about their physical safety in the presence of the mother. Additionally, I have had regard to the supervision reports provided by the supervision service that has been engaged to supervise mother’s time with the children. Those reports are overwhelmingly positive in respect of the mother’s interactions with the children.
By way of summary, there is no evidence to suggest that the children are at an ongoing risk in respect to their physical safety in the mother’s care and the reports from the supervision service suggests that the children are emotionally safe in the mother’s care given their description of the positive interactions between them. On that basis, I find that it is in the children’s best interests to spend additional time with their mother.
Whether the children’s time with the mother should be supervised
Again, while the father has taken objection to certain aspects of the Report of Dr F, I do not understand there to be any challenge to the general propositions that removing the requirement for supervised visits can help normalise the children’s relationship with their mother, reducing feelings of alienation and mistrust.
In circumstances where, on a preliminary basis and subject to further argument, I have determined that the children do not face either physical or emotional risk in the unsupervised care of the mother, I will make orders as proposed by the ICL for the children to spend unsupervised time with the mother.
Whether there is risk to the children remaining in the primary care of the father
The mother contends at paragraph 14 of her affidavit filed 16 September 2024, that there is a risk to the children of remaining in the father’s primary care as result of the father engaging in ‘alienating’ conduct to disrupt, impede or discourage the children’s relationship with the mother.
In that respect, senior counsel for the mother relied heavily upon the observations, as opposed to the opinion, recorded by Dr F in his Report. Some of Dr F’s observations included:
·The children tended to look to their father for approval during interviews and exhibited caution and vigilance, indicating a level of control and influence over their responses (Dr F’s Report, paragraph 85).
·The children’s refusal to accept snacks from their mother, despite them being identical to those provided by their father, illustrating a degree of the father’s influence over the children (Dr F’s Report, paragraph 138).
·Y’s reluctance to express distress or negative emotions (Dr F’s Report, paragraphs 101 and 180).
Relying upon the Report of Dr F, senior counsel for the mother contended that the alienating conduct engaged in by the father has fractured the relationship between the children and their mother, allowing him to remain the aligned parent and maintain control.
Senior counsel for the mother contends that while the mother has addressed the concerns of risk on her part, the father refuses to accept or implement any of the recommendations made by independent experts in relation to the children. These recommendations include the engagement of psychological assistance for the children, the establishment of regular and supported communication between the mother and children and the removal of the requirement for supervision. As a result, the Court should conclude, even in these interim proceedings, that the father is not prepared to genuinely support the children’s relationship with the mother and that, accordingly, orders need to be made for there to be a change of residence to ensure that the children can rebuild their relationship with their mother. This, it is contended on the basis of Dr F’s Report, is essential for their overall development and well-being.
The difficulty I have in these interim proceedings, is that these are complex issues requiring determination at final hearing. In that respect, for instance, it is generally accepted that there are a multiplicity of factors at play that influence a child’s reluctance and/or resistance to spend time with a parent.
In Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345 (Fam), Sir Andrew McFarlane P suggested that, before a finding that “alienating conduct” has occurred, the Court would need to be satisfied that three elements are established. They are that:[4]
(a)the child is refusing, resisting, or reluctant to engage in a relationship with a parent or carer;
(b)the refusal, resistance or reluctance is not consequent on the actions of the non-resident parent towards the child or the resident parent; and
(c)the resident parent has engaged in behaviours that have directly or indirectly impacted on the child, leading to the child’s refusal, resistance, or reluctance to engage in a relationship with the other parent.
[4] See also, the recent decision of Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B) at [171].
Determining whether the father has engaged in alienating behaviour is a complex issue in circumstances where there is a live issue to be determined at final hearing as to whether the mother has engaged in abusive behaviour of the children that may have caused or contributed to their reluctance to spend time with her.
Equally, I note that careful consideration needs to be given to all relevant facts before orders are made requiring there to be a change in a child’s primary place of residence from one parent to the other. Such an order has the potential to cause significant emotional distress to the impacted children: Simmons & Simmons (2023) FLC 94-137 at [52].
In exercising jurisdiction under the Act, I am required to have regard to “the need to protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act). This necessarily involves “focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being” (Bielen & Kozma (2022) FLC 94-123 at [30]).
The making of such orders for a change in residence in this case is particularly complex. Decisions should be made on the basis of common sense. The Court must recognise the reality that older children are less open to being told what to do by adults, including by a judicial officer: Warwickshire County Council v The Mother [2023] EWHC 399 (Fam) at [23]. There is always a risk that in the case of older children, such as the older children in this case, that they will ‘vote with their feet’ and not comply with orders for there to be a change in residence.
Even without taking into account the possibility that the children might refuse to comply with the orders, I refer to the decision of Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B) at [65], citing Re T [2004] 2 FLR 838 at [33], (Dame Elizabeth Butler-Sloss P) as follows:
The Court must not evaluate and assess the available evidence in separate compartments. Rather, regard must be had to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out on the balance of probabilities. The Court must take into account all of the evidence and consider each piece of evidence in the context of all the other evidence. A Judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward has been made out to the appropriate standard of proof.
(Emphasis added)
At this stage of the case, noting first, the criminal proceedings against the father are still on foot, and second, the challenge to the Single Expert Report on the basis that Dr F exhibited signs of bias (father’s affidavit filed 1 November 2024, paragraphs 40–56), I am not satisfied that I am in a suitable position to consider the totality of the evidence and determine whether a change of residence would be in the children’s best interests. A comprehensive assessment of these issues requires a detailed examination that can only be conducted during the trial, where all evidence can be thoroughly reviewed, tested, and weighed in context.
In circumstances where I am unable to determine these complex and competing issues in the context of these interim proceedings, I reject the mother’s application for there to be orders for a change of residence and, necessarily, the ancillary orders that she proposes whereby there be a moratorium on the children spending time with the father and incrementally resuming that time in a graduated manner.
However, that is not to say that I would not consider making such orders as sought by the mother at final hearing, if I am satisfied that the father has engaged in such alienating conduct. I stress that these are issues to be considered in detail at the final hearing.
Views of the children
Dr F recorded in his Report that the children want to continue living with the father and they do not want to spend overnight time with the mother. He opined, however, that the children’s initial reluctance to spend time with their mother needed to be seen in the context of how they had come to those views. Dr F acknowledged that although the mother had been verbally abusive towards the children, it was apparent that the father had capitalised on her distress and used it to gain alignment with the children. To that end, Dr F was of the opinion that it would be in the children’s best long-term interests to “immediately resume time with their mother in order to allow them to rebuild the relationship” (Dr F’s Report, paragraph 155).
In that respect, Dr F noted at paragraph 177 of his Report that:
When observed together, it was evident that ultimately the children were comfortable with both their mother and father. They showed levels of concern and insecurity around each parent, bu[t] for profoundly different reasons.
To build positive interactions with their mother, Dr F proposed structured weekend visits to allow the children to gradually adjust to spending time with their mother.
He opined that removing supervision would encourage the children to have a relationship with their mother “which sits outside their relationship with the father”, thus, allowing their relationship to improve quickly and dissipate any reluctance that the children had exhibited towards their mother (Dr F’s Report, paragraph 162).
Accordingly, Dr F recommended the children should begin with daytime visits on weekends, progressing to overnight stays as they become more comfortable with their mother.
SINGLE EXPERT REPORT – RECOMMENDATION SUMMARY
Dr F outlines issues with each of the parent’s proposals to spend time with the children. He explains that the mother’s proposal to repair her relationship with the father and resume time with the children, cannot occur until steps have been made to repair the fractures that have occurred since 2020, which must occur incrementally. Similarly, the father’s proposal for the children to spend time with the parents in accordance with their wishes is not in the children’s best interests either as he has effectively obstructed the children’s relationship with the mother and is unlikely to facilitate the children reconnecting with her in the future. Dr F notes that the father “has the ability and wherewithal to fracture familial relationships, undermine any positive steps made, in order to remain the aligned parent and maintain a position of control” (Dr F’s Report, paragraph 160).
Having regard to those matters to which I have referred, Dr F recommended the following:
(a)The children would benefit from spending significant time with their mother as well as their father. This is despite the children’s wishes expressed to Dr F that none of the children wish to spend overnight time with their mother.
(b)The mother should no longer be subjected to the professional supervision requirement when spending time with her children. Dr F notes the mother has made significant improvements in regard to her mental health since the parties’ separation and through attendance on a suitably trained clinical psychologist, has gained self-awareness and insight into her actions and improved her emotional regulation.
(c)The children be allowed to spend time during the day with the mother, starting with daytime only, on both Saturday and Sunday each weekend for the next three months. Overnight time on the Saturday night should begin after a period of four weeks.
(d)Should the children continue to reject time with their mother after the three month period, the Court may have no other choice than to seriously consider an abrupt reversal of care for a further three months to allow them the time and space away from their father in order to more effectively rebuild the relationship with their mother. This recommendation was made in light of the following observation at paragraph 163 of Dr F’s Report:
… The conflict in this matter appears to be entirely between the adults but has permeated down into the relationships with the children through their exposure to this conflict and the requirements by the parents’ respective personalities for the children’s unwavering alignment to a narrative of which they do not have the requisite developmental capacity to appropriately understand or effectively challenge their own.
(e)The mother should be allowed to enlist the support of family and friends in order to deliver the children to their respective sporting events, and for the next three months, the father should refrain from attending the children’s weekend sport.
(f)The mother return to an experienced clinical psychologist instead of a victim services counsellor; and the father should be mandated to attend therapy with a clinical psychologist experienced in conflicted family law matters.
(g)Both parents should engage in parent education programs combined with concurrent individualised therapy to further develop their respective parenting skills.
(h)In circumstances where neither parent seems capable of exercising sole parental responsibility, orders should be made that facilitate parallel parenting arrangements whereby the parties make decisions for the children whilst in their care to minimise contact.
(i)Until final orders are made, to reduce conflict, the residential parent, the father, have interim sole parental responsibility.
(j)Final spends time arrangements, will depend on the success of whether the children are able to repair their relationship with their mother.
Children’s attendance at therapy
As previously noted, the ICL has sought orders for the children to attend non-reportable individual therapy as distinct from family therapy aimed at achieving a reconciliation between the children and their mother.
This is in the context where orders were made on 5 February 2024 for the parties and children to attend family therapy.
Irrespective of which party’s allegations are or are not substantiated at final hearing, the children have confronted events that would be challenging even for the most hardy of individuals. In those circumstances, one would assume that both parents would support the children engaging in individual therapy.
It is, however, unclear as to what their respective positions are.
By email dated 6 November 2024, the solicitor for the mother advised the court that “objection is taken to Order 6 in the minute of order forwarded by the ICL to the Court by email on 5 November 2024, otherwise no objection is taken to the balance of the ICL’s minute”.
An additional paragraph in that email read:
The one matter that the ICL indicated would be the subject of a proposed order was the appointment of a psychologist for the children however she did not foreshadow the inclusion of Order 6. If His Honour wants to receive Order 6 then the Wife’s position is if [Ms D] is unavailable, the children should attend upon another psychologist within the same practice.
Contrary to that which is asserted in the email, the ICL made it quite clear, in the proceedings, that she proposed non-reportable therapy for the children, as evidenced by the following exchange:
[ICL:] In relation to the issue raised by your Honour and by the mother in relation to the children engaging in therapy, that was something that I had proposed to the parties back in July. There was three names of therapists which were proposed. I understand the order the mother proposes for the children’s psychology clinic in [Suburb L] was one of those that was selected from the three. The father obviously hadn’t – well, he’s opposed to any type of therapy. But it’s my view, in terms of the children engaging some support – regardless of what the purpose is, it’s really just for them to make sense
[HIS HONOUR:] Particularly if it’s non-reportable.
[ICL:]Non-reportable. And to make sense of what’s going on in their lives in circumstances where you have two warring parents. It’s a high-conflict matter, and it gives them an opportunity to be able to seek assistance and psychological support. I understand why the father says it’s not needed, but I think [Dr F] makes a compelling case as to why the children should have some support in relation to their ongoing psychological needs.
(Transcript 5 November 2024, p.47 lines 29–45)
The email from the mother’s solicitor is surprising in light of the following exchange between myself and senior counsel in the proceedings:
[HIS HONOUR:] by the way, is the wife’s proposal for reportable or non-reportable?
[SENIOR COUNSEL FOR THE MOTHER:] Non-reportable.
[HIS HONOUR:] Non-reportable. Just simply to give the kids a hand, isn’t it?
[COUNSEL FOR THE FATHER:] Yes. Yes.
(Transcript 5 November 2024, p.34 lines 16–21)
The position of the father is equally unclear. On 5 November 2024, after I inquired whether the children were receiving therapy, counsel for the father initially submitted that the children did not need therapy, however this answer was later revised to: “it depends on what type of therapy and what it’s meant to address”.
However, in response to an email from the mother’s solicitor on 6 November 2024, the father’s solicitor stated:
We find it wholly inappropriate for the Mother’s solicitor to make objections to the ICL’s minute where as [sic] the Court can appreciate, is meant to be the strictly the views about the children, noting [the ICL’s] role and capacity.
For the benefit of the parties and if the Court orders the children to attend therapy, we suggest it should be done in a neutral manner where we would ask the ICL to select a psychologist/therapist for the benefit of the parties. Alternatively, our client could nominate three psychologists and the Mother could select one.
We otherwise note the ICL’s withdrawal of submissions of her initial minute of Orders on 5 November 2024 at 3.47pm.
I should make it clear that I am emphatically of the view that any therapy that the children attend should be non-reportable so that they have a sanctuary during which they can express what is on their mind without any apprehension that their confidences will be disclosed. For it to be otherwise would, in my view, risk further embroiling the children into the parental conflict and potentially confer what is intended to be a safe and therapeutic process to one that itself generates stress.
Additionally, it appears that the parties are at odds regarding the method of selecting the appropriate therapist which, in light of the history of litigation in this matter, gives rise to the possibility of yet further applications in the period prior to the hearing.
I remind the parties of their obligation to act consistently with the “overarching purpose” set out in s 95 of the Act which includes resolving disputes that arise, including during the course of the litigation process, “in a way that promotes the best interests of the child”.
The mother’s solicitor’s criticism of the ICL’s proposal for non-reportable therapy was unjustified. Equally, the father’s solicitor’s subsequent criticism of the mother’s solicitor served little purpose and muddied rather than clarified what the parties’ respective positions were.
Common sense and basic human decency suggests that there is benefit in the children being assisted to confront what any child would regard as a stressful situation by having a safe and confidential sanctuary in which they can voice their concerns and possible anxieties before an appropriately qualified therapist. However, in circumstances where I fear that any orders I make in respect to this issue will simply give rise to further disputation between the parties, I unfortunately feel compelled to reject the ICL’s sensible and meritorious application for the children to attend non-reportable therapy.
Orders to facilitate the children communicating with the ICL
The role of the ICL is set out in s 68LA of the Act and includes the obligation set out in subsection (5A) to –
(a) meet with the child;
(b)provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.
[Note omitted]
It is appropriate that the obligation be construed in the context of the objects of Pt VII of the Act, including s 60B(b), to give effect to the United Nations Convention on the Rights of the Child (“the Convention”).
Article 12 of the Convention sets out the right of children to be provided the opportunity to be heard in respect to judicial and administrative proceedings affecting the child, providing:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Additionally, art 13 which concerns the freedom to seek, receive and impart information and art 17, concerning the right to access information, have been recognised as ‘crucial prerequisites’ for children to exercise the right to be heard, and thereby, their right to effectively participate in legal proceedings that impact them.
Other articles of the Convention that are directly relevant to determining matters affecting children and young people in family law proceedings include art 3, which requires the best interests of the child to be a primary consideration and art 5, which recognises children’s evolving capacities.
It is important that family law professionals appreciate that the rights given to children under the Convention are real and that children are not merely passive objects of paternalistic decision-making process (CF v Secretary of State for the Home Department [2004] 2 FLR 517 at [158]).
Moreover, it is in the interests of the children to have a voice in matters that impact them. In G (BJ) v G (DL) (2010) 324 DLR (4th) 367 (Yukon Supreme Court), Martinson J noted at [23]–[24]:
Excluding children and adolescents may have immediate adverse effects such as: feeling ignored, isolated and lonely; experiencing anxiety and fear; being sad, depressed, and withdrawn; being confused; being angry at being left out; and having difficulty coping with stress.
Further, longer-term adverse effects of not consulting children and adolescents may include: loss of closeness in parent-child relationships; continuing resentment if living arrangements don’t meet their needs in time or structure; less satisfaction with parenting plans, less compliance, more “voting with their feet”; and longing for more or less time with the non-resident parent.
The recognition of the Convention in the Family Law Act confirms that children and young people have rights, and should have agency in decisions which are made about them after their parents separate, and that children and young people cannot access these rights without adequate information being available to them. The appointment of an ICL is a statutorily recognised method of ensuring that the views of the children are communicated to the Court (s 60CD(2)(b) and s 68L of the Act) and, equally as importantly, that they are informed by a trained and objective third party of the Court process that will impact them – often significantly. Having regard to s 68LA of the Act and the provisions of the Convention, to which I have referred, the Court would be very concerned if a parent failed to facilitate an ICL from fulfilling their statutory responsibility.
If that does not occur, the Court has power to intervene under s 68M of the Act, to order an examination of the child. I will have no hesitation in making such an order upon application, should it be deemed necessary. However, at this stage, no evidence has been provided that justifies my making that order.
CONCLUSION AND ORDERS
For reasons which I have earlier explained, I am satisfied that the children will not be exposed to an unacceptable risk of physical or emotional or psychological harm in the event of orders being made for them to spend an increasing amount of unsupervised time with the mother with that time evolving in a measured way to spending overnight time with the mother.
While recognising that the father challenges aspects of Dr F’s report, there did not appear to be any challenge with the general principle that it is in the interests of the children for their relationship with the mother to be restored as best as it reasonably can be in the circumstances of this case.
Orders 1, 2 and 3 of the orders proposed by the ICL take a responsibly cautious approach, in the context of interim proceedings, in achieving a balance between recognising the views of the children who have expressed reluctance to spend overnight time with their mother but, also facilitate that occurring on an incremental basis.
Accordingly, I make orders in accordance with orders 1, 2 and 3 as proposed by the ICL.
In circumstances where neither party has been wholly successful or unsuccessful, I decline to make any order as to costs.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 17 December 2024
0
12
4