Goylan and Durban and Ors (No.2)

[2020] FCCA 3386

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOYLAN & DURBAN & ORS (No.2) [2020] FCCA 3386

Catchwords:
FAMILY LAW –Ex tempore judgment on application by all parties, except the father, to dismiss summarily the father’s application – all other parties in agreement with parenting orders for 8 year old child – father’s application having no reasonable prospects of success – father’s application not in child’s best interests – application for summary dismissal granted.

Legislation:

Family Law Act 1975 (Cth), s.45A

Applicants: MS GOYLAN AND MR GOYLAN

First Respondent: MS DURBAN

Second Respondent: MR A GOYLAN

Third Respondent MS B DURBAN

File Number: DGC 1000 of 2017

Judgment of: Judge Burchardt

Hearing date: 30 November 2020

Date of Last Submission: 30 November 2020

Delivered at: Melbourne

Delivered on: 30 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Clark

Solicitors for the Applicant: Portelli and Co

Counsel for the First Respondent: No appearance

Solicitors for the First Respondent: No appearance

Counsel for the Second Respondent: Self-Represented

Solicitors for the Second Respondent:	Not Applicable
Counsel for the Third Respondent:	Mr Dickson Q.C
Solicitors for the Third Respondent	Sayer Jones

Counsel for the Independent Children’s Lawyer Mr Marchetti

Solicitors for the Independent Children's Lawyer: Bowlen Dunstan And Associates Pty

ORDERS

1. All previous orders be and are hereby discharged.

2. The Paternal Grandparents and Maternal Grandmother have shared parental responsibility for the child X born in 2012.

3. The child live with the Paternal Grandparents.

4. The Maternal Grandmother and Paternal Grandparents shall forthwith sign and do all things necessary to engage themselves and the child in Reportable Family Counselling with Ms EE as follows:

   (a)the Maternal Grandmother and Paternal Grandparents shall attend sessions and shall facilitate the attendance of the child at sessions as recommended by Ms EE, save that both the Maternal Grandmother and Paternal Grandparents may request that they each have an initial session with Ms EE prior to any sessions involving the child;

   (b)the Maternal Grandmother and Paternal Grandparents shall follow all reasonable recommendations of Ms EE in relation to the child’s time and communication with the Maternal Grandmother, with any agreements regarding the same to be in writing;

   (c)if any issues arise in relation to the exercise of shared parental responsibility, they shall form part of the family therapy with Ms EE;

   (d)the parties may attend sessions with Ms EE via Zoom, in person or as otherwise agreed with and/or recommended by Ms EE;

   (e)all costs of and associated with the Family Therapy are to be met by the Maternal Grandmother.

5. The Applicants shall forthwith provide Ms EE with the following documents;

   (a)A copy of these Orders;

   (b)The Family Report of Ms FF dated 20 July 2020;

   (c)The Judgment of Judge Burchardt dated 6 May 2019;

   (d)The Family Report of Ms Q dated 5 February 2018;

   (e)Psychological Assessment and Report of the Third Respondent Grandmother by Dr A dated 18 October 2018;

   (f)Psycho-sexual Assessment and Report of the Applicant Paternal Grandfather by Dr A dated 18 October 2018;

   (g)Psycho-sexual Assessment and Report of the Applicant Paternal Grandmother by Dr A dated 18 October 2018; and

   (h)The Family Contact Service Observational Report dated 31 July 2020 (being annexure 2 to the Affidavit of Mr GG sworn 31 July 2020).

6. The child spend time with the Mother as agreed between the Mother and the Paternal Grandparents.

7. The child spend time with the Father supervised by the Paternal Grandparents or their nominee as follows:

   (a)each alternate Saturday between 12pm and 3pm;

   (b)such time shall not proceed if the Father appears to be in any way affected by drugs, and/or alcohol and/or presenting in a manner that makes it inappropriate for him to spend time with the child;

   (c)such time shall be supervised until the Father has complied with Order 8 below and may then become unsupervised as agreed between the Paternal Grandparents and the Father, such time to commence not less than 21 days after notice is given to the Maternal Grandmother of the intention to commence such time.

   (d)as otherwise agreed between the Paternal Grandparents or either of them and the Father in writing, such time to commence not less than 21 days after notice is given to the Maternal Grandmother of the intention to commence such time.

8. The Father shall forthwith sign and do all things necessary to;

   (a)engage with appropriate mental health services to have his mental health assessed and monitored; and

   (b)shall provide the Paternal Grandparents and Maternal Grandmother with the contact information of any and all practitioners/services that he engages with; and

   (c)shall authorise and direct all practitioners he is engaged with to provide the Paternal Grandparents or either of them and the Maternal Grandmother with information as requested, whether verbal or in writing, about his mental health and engagement with services.

9. The Maternal Grandmother is restrained by injunction from going to and/or remaining at the child’s school unless otherwise agreed between the Maternal Grandmother and the Paternal Grandparents in writing, taking into consideration the recommendations of Ms EE.

10. The Paternal Grandparents shall be hereby restrained by injunction from facilitating the child’s attendance on Ms HH and if it is proposed that the child attend upon another counsellor, psychologist or social worker, Ms EE’s reasonable recommendations regarding attendance and referral shall be followed.

11. Upon providing not less than 28 days’ notice in writing, the Paternal Grandparents may suspend the child’s time with the Father so that they can take holidays with the child.

12. The Maternal Grandmother do all things and sign all documents to enable the issue of a passport for the child X born in 2012 and the child may be issued with an Australian Passport upon the sole application of the Maternal Grandmother and Paternal Grandparents.

13. The child may travel overseas with the Paternal Grandparents upon giving the Father and the Maternal Grandmother 40 days’ notice in writing of their intended itinerary.

14. The Paternal Grandparents have leave to provide to the following individuals copies of the Family Report of Ms Q dated 5 February 2018 and the Family Report of Ms FF dated 20 July 2020 in this matter:

    (a)Any counsellor, psychologist, social worker or related person who is engaged in connection with the child’s emotional and/or psychological wellbeing, in accordance with paragraph 10 above.

15. The Paternal Grandparents, Mother, Father and the Maternal Grandmother, their servants and/or agents are restrained by injunction from exposing the child, whether directly or indirectly to:

    (a)family violence and/or conflict between any and all of the parties, in the child’s presence, hearing or in a manner that comes to the child’s attention;

    (b)putting down, belittling, abusing and/or otherwise denigrating the child’s family members;

    (c)inappropriate adult discussions, including discussions about any aspect of these Court Proceedings and/or any material related to these proceedings; and/or

    (d)inappropriate questioning of the child in relation to allegations of sexual, physical, emotional and/or any other forms of abuse and/or harm; and/or

    (e)misuse of drugs and/or alcohol.

16. The Paternal Grandparents and Maternal Grandmother keep each other informed in a timely fashion if X suffers a serious illness or serious injury whilst in their respective care, and each of them is authorised to speak to any medical practitioner who treats the child in relation to such illness/injury.

17. All extant Applications shall otherwise be dismissed including but not limited to the Notice of Objection filed by Ms HH.

18. The Second Respondent’s Application to extend time to file an amended application in terms of the document filed 23 November 2020 be dismissed.

19. The order appointing the Independent Children’s Lawyer dated 18 July 2017 be discharged.

AND THE COURT NOTES THAT:

A.The Paternal Grandparents intend to facilitate the child’s relationship with her half-brother, W and her extended maternal family including but not limited to, Ms R.

B.The Maternal Grandmother and Paternal Grandparents shall communicate by email, and the Maternal Grandmother will email the Paternal Grandparents at ....com to provide the mobile phone numbers and email addresses of the maternal family members.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Goylan & Durban & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1000 of 2017

MS GOYLAN AND MR GOYLAN

Applicant

And

MS DURBAN

First Respondent

MR A GOYLAN

Second Respondent

MS B DURBAN

Third Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The matter before Court at the moment is what is, in substance, an application put by the various parties other than Mr A Goylan to the effect that his application filed on 23 November 2020 be summarily dismissed.  It is important to remember the history of this matter.  The case first stated on 3 April 2017.  It is possible that I am wrong, but I do not see on the Court file any materials whatever filed by Mr A Goylan until 23 November 2020.

2. The case was heard over four days in February of 2019.  One of the matters that I described at paragraph 9 of that judgment being agreed was the fact that Mr A Goylan suffered from schizophrenia.  In that case, he fully supported his parent’s position, and it will be recalled that I found all the allegations made against Mr and Mrs Goylan unfounded, save for the possibility they might have smacked X on an occasion.

3. The matter returned relevant to the Court in 6 May 2020 following various interlocutory applications made, and on that occasion the father did not attend.  On 15 June 2020, I made further orders in chambers timetabling the progression of the various interlocutory disputes then before the Court.  The matter returned to Court on 12 August 2020; the father did not attend, and the matter was adjourned to the following day, and on 13 August 2020 I made orders. The father did attend and, relevantly, I set the matter down for hearing today, 30 November 2020.

4. Relevantly, the father was to file and serve any amended response and other documentation not less than 14 days before trial, i.e. 16 November 2020.  On 23 November 2020, the father filed his initiating application which sought that X live with him and spend no time with either grandparents, neither Mr and Mrs Goylan or Ms Durban.

5. He also filed a notice of abuse in that he asserted his father’s dementia was worsening and inter alia was leading to violent behaviour.  On one occasion, it was alleged that he had pushed X over, and on another the child had hidden in a cupboard as a result of being yelled at.

6. He referred to threats to remove him from his parents’ will.  He referred to an assertion that his parents would refuse him visitation rights, and he asserted that false claims would be made to third parties about his mental health giving rise to investigations which were troubling him at the moment.

7. In his affidavit filed likewise on 23 November 2020, the father asserted that he has been the only constant in X’s life over the last nine years.  He referred to living arrangements for X which were satisfactory in his home.  At paragraph 12, he asserted:

   With my assets and income, I am in the top 50 richest people on planet earth.

8. I will say no more than that is a slightly startling assertion.  I note that –

   RECORDED:  NOT TRANSCRIBED

9. In paragraph 11, Mr A Goylan asserted he had been assessed for mental illness and was diagnosed as displaying no symptoms.  The document appended to his affidavit in support of that proposition, I would assume, is a sort of self-assessed non-diagnosis – it expressly said it is not a diagnosis – and its conclusions were wholly based upon Mr A Goylan’s own self-report.

10. I note that Ms FF, the family report writer, interviewed the father on 24 June 2020.  At paragraph 207 of her report, she noted that he supported his parent’s position but would prefer for X to live with him fulltime, as she should never have been removed.

11. At paragraph 217, Ms FF noted the diagnosis of schizophrenia in 1995 and went on to note an ongoing series of difficulties that Mr A Goylan has faced.  I would interpolate and say that nothing I say should be construed as, in any way, critical of anything to do with Mr A Goylan’s health:  to the extent that he has suffered from difficulties this is a matter for sympathy

12. I note that at paragraph 225 Mr A Goylan was assessed as being of moderate risk to X should she be in his care.  I note that at paragraph 245 X said she had never been smacked and that her grandparents, Mr and Ms Goylan, would never hurt her, although the grandmother does yell at her, and at paragraph 206 Ms FF recommended that the father’s mental health be assessed, and if there were no concerns unsupervised time could be incrementally introduced.

13. I will now paraphrase – and I appreciate it is a paraphrase – the submissions made this morning.  Mr A Goylan, of course, made it clear that it was his position that this child should live with him and spend no time with either of the grandparents.  He said that he had observed child abuse on the last three visits.  There had been threats and promises arising out of whether or not he would reveal what he described as the truth about his father’s health.  He had only seen X three times since the lockdown ceased.  He has been written out of their will.  He is suffering mental health harassment – this is the reference to third parties to which I have referred, and he made it clear that he wished to cross-examine so that the truth would come out.

14. Counsel for Mr and Mrs Goylan noted that the court should consider the summary dismissal.  The father had not been engaged in the proceedings– save to the extent that he had supported his own parents’ previous position.  She confirmed that Mr A Goylan was presently being contacted by mental health services.

15. Senior counsel for Ms Durban submitted there was a short way home.  The father had had no active role in the proceeding until recently.  The orders made on 13 August required his documentation to be filed 14 days before the hearing, and he was late.  The application should be treated as a nullity.  Counsel submitted that the course of action the father sought to commence would penalise and put at risk those who had settled and the efficacy of the settlement that they have arrived at.

16. Counsel for the independent children’s lawyer submitted that Court had made orders to bring this matter to a conclusion in August 2020.  The father had not attended on one day in August.  He had attended upon Ms FF.  The history of the matter was in my judgment previously published. The grandparents have now become sufficiently aligned for the matter to proceed in a sensible fashion.

17. In reply, Mr A Goylan referred to the fact that he was concerned with the safety of his daughter and that he seeks to prevent more abuse.  The court needs to examine the lies and deceit that had arisen.  He suggested that the two sets of grandparents had only agreed now, so they could avoid cross-examination by him.  He has recently been a candidate in the Region JJ council and received 800 votes; he is not mentally ill.  His father would be 80 this year and is deteriorating badly.  He thought 23 November was the cut-off date, but he made a mistake.

18. He went on to suggest, and I hope I understood this correctly in my notes, that the legal aid solicitor he had previously engaged with had talked     to his mother and come back to him, and asserted that he was concerting with paedophiles and, accordingly, his legal aid was cut off forthwith.

19. I make a number of points.  First, the father’s affidavit application is late.  He says he is quite well, but he was at court when the orders were made.  He now says he got it wrong, which is not a satisfactory explanation in the circumstances.

20. Next, the father is wrong in some important respects.  It is not correct to say that he has been the only constant in X’s life for the last nine years.  He has been, perhaps, a constant peripheral figure, but the reality is that X was sent to live with Ms Durban following protracted proceedings in the Children’s Court, and X was then sent to live with Mr and Mrs Goylan as a result of protracted proceedings in this Court, which the father supported.  The assertion that he is the only constant in her life for the last nine years is simply not correct.

21. Next, the father’s mental health is not clear.  He has a strong history of mental ill health, but there is no evidence before the court of any precision at the present time.  His claim to have lost legal aid in the way which he said he did is, prima facie, somewhat startling.  He has made clear that his present concerns appear to be inter-related with fears as to a loss of inheritance, which if he has the figures correct would indeed be a very substantial one.

22. Next, the allegations of abuse made against Mr and Mrs Goylan are, prima facie, somewhat farfetched.  He has asserted that X took a tumble on the beach which is, after all, a public place, and has asserted the grandmother yelling at X, but X has already disclosed this to Ms FF and was not, in any sense, concerned about it.  It needs to be remembered at all times the question of X’s best interests is what the Court is concerned with.

23. The father had always really been in the background.  This case, over many years in the court, has really been, at all times, between the two primary carers, Mr and Mrs Goylan and Ms Durban.  Ms FF was aware of Mr A Goylan’s desire to have the child live with him, but only recommended unsupervised time in very qualified circumstances.  And, indeed, the consent orders do propose time with the father. It is, indeed, in accordance with Ms FF’s recommendations, and the history of the matter does not suggest that Mr and Mrs Goylan will not comply with orders to which they consent.  As I say, the case is all about X’s best interests.  Whereas the grandparents now agree and will be undertaking counselling with Ms EE, who is an extremely experienced counsellor.

24. Senior counsel for Ms Durban is correct to submit – a view that I think was supported in the submission by Mr Marchetti for the independent children’s lawyer, that any disruption to that level of agreement is not in X’s best interests.

25. I would infer without any difficulty that arriving at the final orders by consent has been a difficult and demanding process for all of those who have participated in the preparation, and the course of conduct the father seeks to embark upon has every chance, it would seem to me, of throwing discord back into what, after all, is a very sensible way forward.

26. Section 45A of the Family Law Act provides that Court may dismiss a proceeding or part of a proceeding that a party is prosecuting it the court is satisfied that party has no reasonable prospect of success and for the purposes the section, pursuant to section 45A (3), a proceeding or part of proceeding need not be helpless or bound to fail to have no reasonable prospects of success. In my view, in the circumstances that I have described in this ruling, I do not think the father has reasonable prospects of success with prosecuting his case.

1. I detailed the various matters that lead me to that conclusion, and there is also the overarching matter that I think it is not in X’s best interests that these matters be taken further for reasons I have described.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:   

Date: 10 December 2020