Gowrie and Gowrie

[2017] FCCA 3328

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOWRIE & GOWRIE [2017] FCCA 3328

Catchwords:
FAMILY LAW – Final parenting – where the mother has failed to comply with prior orders and directions regarding attendance at family counselling and family dispute resolution services – final orders made by consent.

Legislation:

Family Law Act 1975, ss.4, 13C, 13D, 60B, 61C, 64B, 65DAC, 65F, 67Z

Federal Circuit Court Rules 2001, rr.13.03A, 1303B

Cases cited:
Tate & Tate(No.3) (2003) FLC 93-138
Stevenson & Hughes [1993] FamCA 14

Applicant: MS GOWRIE

Respondent: MR GOWRIE

File Number: PAC 2401 of 2016

Judgment of: Judge Harman

Hearing date: 17 November 2017

Date of Last Submission: 17 November 2017

Delivered at: Parramatta

Delivered on: 17 November 2017

REPRESENTATION

Solicitors for the Applicant: Ms Jaksic of Lamrocks Solicitors

Solicitors for the Respondent: Mr Bainbridge of Bainbridge Legal

ORDERS

1. Discharge the Order for preparation of a Family Report, being Order 3 of the Orders made 24 March 2017.

2. By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.

3. Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.

4. Remove all issues from the list of matters awaiting hearing.

5. Leave is granted to Mr Gowrie to withdraw and discontinue his Application for Divorce filed 26 July 2016 without prejudice and without penalty as to costs.

6. Dispense with the requirement for Mr Gowrie to make payment of any further filing fee with respect to a subsequent Application for Divorce that he intends to file and will file forthwith.

7. Request that a copy of these Orders be forwarded to (omitted) Counselling and (omitted) be requested to advise the Court pursuant to section 13D of the Family Law Act 1975 should Ms Gowrie fail to contact them by close of business 24 November 2017 to enrol in such family counselling services as were previously assessed as suitable and, further, to advise the Court in writing should Ms Gowrie fail to complete such courses or services as were assessed as suitable.

8. In the event that the Court receives notice from (omitted) that Ms Gowrie has failed or refused to participate in or complete courses and services assessed as suitable, then the parenting Orders made today will be dismissed by Order in Chambers without hearing further from either party.

9. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

EXHIBIT ‘A’

1. That the Interim Orders dated 9 December 2016 be discharged.

2. That the mother have sole parental responsibility for the children X (DOB: (omitted) 2005) and Y (DOB: (omitted) 2007).

3. That the children live with the mother. 

4. That the children spend time with the father as agreed between the parties. 

5. That in the event of the children or either of them suffering a serious medical emergency requiring urgent medical attention the mother shall notify the father as soon as practicable and provide him with the full details of the practitioner and medical facility upon which the children or either of them attends as soon as possible.

6. That each party shall ensure that they keep the other advised of their telephone number, residential address and email address and notify the other of any change to these details as soon as is practicable.

7. That the mother be permitted to travel with the children outside the Commonwealth of Australia on any occasion the mother deems fit on the condition she provides the father with the following:

   (a)That the mother provide the father  with no less than six weeks' notice of the intended date of departure from Australia and the intended date of return to Australia;

   (b)That the mother provide the father with an itinerary for the proposed travel and contact details for the children while they are travelling at least three weeks prior to the proposed date of departure;

   (c)That the mother provide the father with written confirmation of the travel and medical insurance policies to apply to the children while overseas at least three weeks prior to the proposed date of departure.

8. That the father shall complete, sign and have duly witnessed and return to the mother any passport application for the issue of a passport to the children within 14 days of the mother providing the father with such a form for him to sign.

9. Should either party refuse or neglect to sign, within fourteen (14) days of a request to do so by the other party, any deed or instrument including any documents necessary to give effect to these orders, then the Registrar of the Federal Circuit Court in its Parramatta Registry and in his absence the Deputy Registrar, are authorised and empowered under Section 106A of the Family Law Act, to sign all necessary documents and do all necessary things on behalf of the parties, upon the Registrar being provided with verification of such refusal or failure by way of affidavit. In the event that the appropriate court officer is required to sign documents or do things under this order, the defaulting party on whose behalf the documents are signed or the things done shall bear the legal costs and other expenses of the default, payable to the other party on a solicitor and client basis.

10. That neither party physically discipline the children.

11. That neither party shall denigrate the other party or permit any third party to denigrate the other parent in the presence or hearing of the children or either of them.

12. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

13. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Gowrie & Gowrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2401 of 2016

MS GOWRIE

Applicant

And

MR GOWRIE

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today at the Court’s own motion. 

2. This matter has been on foot before this Court, with respect to one or more issues, since 27 May 2016 – approximately 18 months. 

3. The matter has a future Court date:  29 March 2018.  That date is the date fixed for the return of the proceedings following anticipated completion of a Family Report, to be prepared in the parenting dispute between these parties. 

4. When the proceedings were commenced there was also a plea for relief with respect to property adjustment. Those issues were concluded by Orders, made by consent, on 24 March 2017.

5. The effect of those Orders was that the husband retained a semi-rural property, at (omitted) and paid to the wife a sum certain approaching $600,000.  Accordingly, and on that basis, the largess extended to these parties, through a Family Report having been ordered at the Court’s expense, is something of a curiosity, (i.e., it is no longer this Court’s practice – the parties would and should have been required to pay for their own Report as they clearly have the funds to do so).  In any event, the Order commissioning that Report can now be discharged.

6. The listing today arises as a consequence of default in compliance by the Applicant, with Orders previously made by this Court.

7. As would be apparent from rule 13.03B of the Federal Circuit Court Rules 2001, there are consequences of non-compliance with the Court’s Orders. Those consequences would appear to be consequences which the parties are either ignorant of or are prepared to take the risk of incurring. 

8. Rule 13.03B of the rules, which I incorporate herein, makes clear that if a party is in default (that being defined in rule 13.03A of the rules, as failure to comply with an Order of the Court), that the Court might then stay or dismiss the whole or any part of the proceedings or take any other step within time limits imposed by an Order.

   Orders on default

   (1)  If an applicant is in default, the Court may order that:

   (a)  the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

   (b)  a step in the proceeding be taken within the time limited in the order; or

   (c)  if the applicant does not take a step in the time mentioned in paragraph  (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

   (2)  If a respondent is in default, the Court may:

   (a)  order that a step in the proceeding be taken within the time limited in the order; or

   (b)  if the claim against the respondent is for a debt or liquidated damages--grant leave to the applicant to enter judgment against the respondent for:

   (i)  the debt or liquidated damages; and

   (ii)  if appropriate--costs; or

   (c)  if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:

   (i)  the applicant appears entitled to on the statement of claim; and

   (ii)  the Court is satisfied it has power to grant; or

   (d)  give judgment or make any other order against the respondent; or

   (e)  make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.

   (3)  The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2)(b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry:

   (a)  an affidavit, or affidavits, proving:

   (i)  service of the application claiming judgment for the debt or liquidated damages; and

(ii)  that the respondent is in default; and

(b)  an affidavit for the debt or liquidated damages in accordance with the approved form.

(4)  Unless the Court otherwise orders, if a respondent to a cross-claim is in default:

(a)  a judgment or decision on any claim, question or issue in the proceeding on the originating process; or

(b)  any other cross-claim in the proceeding;

is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.

(5)  In subrule (4):

"decision " includes a decision by consent.

"judgment " includes a judgment by default or by consent.

(6)  The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.

1. The Court is asked, by the mother, to do nothing, in light of her default. 

2. The Order of which the Applicant is in default is an Order pursuant to section 13C of the Family Law Act 1975, requiring that both parties engage in Family Counselling Services. That is an Order that was made on 13 October 2016, (i.e. 13 months ago). The Order required that each party contact (omitted), a designated AG funded Family Counselling Service, for the purpose of participating in Family Counselling Services. The Order also required that, subject to assessment of suitability, the parents cause the children to participate in the Anchor Program. 

3. Both parties were to file and serve a brief Affidavit as to their compliance with those Orders, before the next Court event which, at that point in time, was 24 March 2017.  Neither had filed an Affidavit at that time – although, to his credit, Mr Gowrie has now done so. His Affidavit makes clear that he has done all within his power to both complete the courses and programs that were assessed as suitable for him, and to have the children participate in the Anchor Program.

4. The Court received correspondence from (omitted), pursuant to section 13D of the Family Law Act 1975, on 8 November 2017. That correspondence, Exhibit B, made clear that the Agency was aware of the Orders made by this Court and advised that Mr Gowrie had attended and completed certain sessions. Mr Gowrie has confirmed that which he has completed. The letter concludes, “Ms Gowrie did not attend scheduled appointments. We confirm neither one of the children attended any of our programs”.

5. Accordingly, that is default, with respect to Ms Gowrie.

6. If it were only the default, it would be problematic enough.  However, there is the added difficulty being that which the Act intends. Any cursory examination of the Explanatory Memorandum to the 2006 amending Bill makes clear the desire of parliament that parties attend services that might support and assist them in their co-parenting relationship, together or individually, and enforcing the importance of those assistances offered to parties and their children.

7. Pursuant to section 65F of the Act, which I incorporate herein, the Court is enjoined from making any final parenting Order, with respect to a child, unless the parties have attended Family Counselling, or the Court is satisfied there is an urgent need for a parenting Order in the circumstances of the case, or that the Court is satisfied it is not practicable.

   General requirements for counselling before parenting order made

   (2)  Subject to subsection (3), a court must not make a parenting order in relation to a child unless:

   (a)  the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or

   (b)  the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

   (c)  the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

   (3)  Subsection (2) does not apply to the making of a parenting order if:

   (a)  it is made with the consent of all the parties to the proceedings; or

   (b)  it is an order until further order.

8. It is not alleged that there is urgency or special circumstances. It is not suggested that attendance is impractical. Attendance at Family Counselling as ordered has simply not occurred. It has been ordered by the Court and disregarded. Perhaps the saviour for these parties is that section 65F(3) of the Act provides that the constraints above do not apply if the parenting Order is to be made with the consent of all parties to the proceedings, or it is an interim Order. It is a final Order that the Court is today asked to make, by consent, and being an Order that will conclude these proceedings.

9. Ms Gowrie, through her legal representative, indicates that she was of the belief that Family Counselling was unnecessary as:

   a)The parties had reached agreement through their own endeavours; and

   b)That having contacted the Agency, Ms Gowrie was advised by them that if they had agreed, they need not attend. 

10. Whether Ms Gowrie was or was not given that advice is irrelevant.  The Order to attend Family Counselling is an Order of the Court. As the Full Court of the Family Court made clear in Tate & Tate(No.3) (2003) FLC 93-138, an Order of the Court – in that case, the Family Court of Australia, (although I am satisfied, equally applicable as regards to the Orders of this Court, as a Court of record) – even if purely procedural or interlocutory, such as an Order for filing of a document, is to be complied with as an Order of the Court, and contumelious disregard will not be countenanced. The Federal Circuit Court Rules 2001 reinforce that position.

11. The other difficulty that arises is that Ms Gowrie has rendered completely unworkable the interim Orders that were made by this Court, again by consent, on 9 December 2016.  Those Orders provided that the children, who are now aged 12 and 10, would spend time with their father for specific periods of time, including alternate weekends and portions of school holidays. The father was to collect those children from a nominated address, which was then proximate to the home of both parties and certainly the father.  However, at an undisclosed date after the making of those Orders, the mother relocated herself and the children from the Sydney area, to (omitted), some hours’ drive away, and it would seem that the practice of relationship between these children and their father terminated at that point, or substantially so.

12. That is problematic, not only as it is, again, on its face, a contumelious disregard of the Orders made by this Court, but as it denies to these children, as well as to the father, rights which they hold.  Ordinarily, one would not describe a parent as having any “right”, with respect to their child. Rights, in the determination of proceedings before this Court, vest in children. However, an Order for time was made, indeed, made by consent, which provided for the children’s practice of relationship with their father. As a consequence of section 64B of the Act, the right to a relationship, upon the making of an Order, vests in the father.

13. Section 60B of the Act creates rights for these children. They are not enlivened or practiced when it is found to be contrary to their best interests, but that could not be suggested in this case, as the parents provide their consent to the Orders tendered in Exhibit A. Those rights include a right for these children to know and be cared for by both of their parents, and to spend time and communicate with both of their parents and other people significant to them, including grandparents and other relatives, a right possessed by children, for parents to jointly share duties and responsibilities and agree about future parenting. These are four rights which the mother’s relocation disregarded.

14. Even more troubling is that the Orders made by consent between these parties invested the parents, with equal shared parental responsibility. Accordingly, the obligations in section 65DAC of the Act came into play, upon the making of that Order, the parents being thus obliged to consult with each other and make a genuine effort to arrive at joint decisions about major issues.

15. Major issues are defined in section 4 of the Act and include changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with a parent.

16. It is in that context that the mother now presents Terms of Settlement to the Court and invites the Court to make the Orders, when she is in default of:

    a)The Orders made by this Court, with respect to Family Counselling assistance;

    b)The Orders that were made by this Court, with respect to the father’s time with the children; and

    c)Her obligations, as discussed by Fogarty and Nygh JJ, in Stevenson & Hughes [1993] FamCA 14, as regarding the support and encouragement, let alone facilitation of the children’s relationship with the other parent upon an Order being made for it to be so.

17. On one view, one would think that the Application of Ms Gowrie should simply be dismissed. But for the fact that I am invited by Mr Gowrie, through his legal representative, to not take that step but, instead, to make the Orders by consent, it is the very step I would take. The Orders will be made on the condition that Ms Gowrie will complete all services that were required of her and assessed as suitable by (omitted).  Should she fail to do so, and upon the Court receiving advice that it is so, any Order made today in Ms Gowrie’s favour, including the Order for sole parental responsibility, for the children to live with her, and permitting Ms Gowrie to remove the children from the Commonwealth of Australia, will be discharged. On that occurring, it would then be impossible for Ms Gowrie to remove the children from the Commonwealth without the written consent of Mr Gowrie, appropriately authenticated, or an Order of this Court.

1. Contumelious disregard of this Court’s Orders will not be tolerated in the future, by Ms Gowrie or any other litigant.  If an Order is made for the parties to attend Family Counselling Services, it is not simply to fill the gap whilst the matter is delayed, awaiting a Hearing. It is intended to assist the parents, but more importantly, to assist the children. One would think that Family Counselling Services might have developed some degree of insight into the importance, for example, of these young children, X and Y, continuing and maintaining a relationship with their father.

2. There is nothing suggested, in the evidence filed in these proceedings to date, that these children are at unacceptable risk of harm from their father. Indeed, it could not be so. The mother would not have consented to the Orders that were initially made if she held such concerns.  Indeed, it can be further and more forcefully inferred that no such concern arises, as Ms Gowrie, as the Applicant in the proceedings, did not, at the time that she commenced the proceedings, file a Notice of Risk.  Notwithstanding the Federal Circuit Court Rules 2001 requiring it be so, and notwithstanding the obligation imposed by the Act [1] to file such a Notice, if such concerns, risks or allegations were raised. I can only infer that the absence of the Notice implies that the mother did not hold and does not hold such concerns.

   [1] Section 67Z of the Family Law Act 1975.

3. The net effects of the mother’s contumelious disregard of this Court’s Orders, both as to Family Counselling, and as arising from her relocation, is that these children are disadvantaged. Their relationship with their father is significantly diminished and, but for the father’s consent to the Orders and urging the Court to conclude the matter so that he might have some peace and comfort in the disastrous circumstance that has arisen, as already indicated, it would simply be a matter of dismissing Ms Gowrie's Application. Indeed, it is a generous position that Mr Gowrie adopts. If Ms Gowrie's Application were dismissed and Mr Gowrie were to withdraw his own Application he would, in fact, end up with more generous Orders in his favour than that which will arise from the Orders to which he consents.

4. Before concluding those issues, however, it must also be observed that Ms Gowrie did not comply with that which was required of her with respect to Family Dispute Resolution. A certificate was filed on 16 September 2016, indicating that Mr Gowrie did not attend Family Dispute Resolution, but purely as a consequence of the failure or refusal of Ms Gowrie to do so. An Order had been made that the parties attend Family Dispute Resolution. Accordingly, these proceedings become part of the majority – indeed, significant majority – that are commenced without attendance at Family Dispute Resolution.

5. In fairness to Ms Gowrie, her Application Initiating proceedings had sought to address issues of property adjustment only.  It was Mr Gowrie who joined the issues of parenting, by the filing of his Response.  However, the Orders of this Court, for Family Dispute Resolution to occur, were then also disregarded. 

6. I propose to make the Orders, on the terms and conditions that I have indicated. They will create no disadvantage for Mr Gowrie. Indeed, if the Orders are discharged he will, as I have indicated, have a better set of arrangements in force. At least he will then have joint and several parental responsibility, through operation of section 61C of the Act, rather than no right to be consulted, with respect to major issues decisions, as will arise from the Order for sole parental responsibility in Ms Gowrie’s favour.

7. For those reasons, and with grave reservation, and perhaps for the last time ever, I make the Orders, by consent, in accordance with Exhibit A, signed and dated by me today.  I otherwise remove all issues from the list of cases awaiting hearing. 

8. An Application for Divorce is also filed by Mr Gowrie. It cannot proceed, as the date of separation alleged by Mr Gowrie, which postdates the date of filing, as regards to the requirements for a 12 month separation prior to filing. The date of separation alleged by Ms Gowrie is within the 12 month period.

9. The pragmatic and sensible approach is adopted by Mr Gowrie, that being that rather than seeking that the Application be heard and determined by the Court, it having been consolidated with the parenting proceedings, that he will simply withdraw and discontinue the Application and refile. 

10. I am satisfied, in those circumstances, that Mr Gowrie should not be prejudiced through having to meet an additional filing fee. There is no reason to doubt that he may have been successful at Trial, in persuading the Court as to the date of separation as alleged by him. 

11. In any event, the usual practice of the Court is that upon the listing of an Application for Divorce for Hearing on a contested basis, that the Respondent to that Application, Ms Gowrie, pays the hearing fee.  However, both parties agree that a more open finding might be made obviating the need for such a Hearing.  I propose to take that course and conclude all Applications by these parties.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  18 January 2018