Grover & Hannon
[2022] FedCFamC2F 286
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grover & Hannon [2022] FedCFamC2F 286
File number(s): DGC 3161 of 2013 Judgment of: JUDGE BURCHARDT Date of judgment: 17 March 2022 Catchwords: FAMILY LAW – Consideration of father’s prospects of successfully prosecuting his case, pursuant to s 45A of the Family Law Act – where 11 year old child adamant that he does not want to have a relationship with his father – therapy attempted in order to assist a resumption of relationship – therapist asserting chances of success as poor and unlikely – even first step unlikely and improbable – clear no reasonable prospects of success. Legislation: Family Law Act 1975 (Cth) Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60
Pedrad & Pedrad [2021] FCCA 80
Spencer & The Commonwealth of Australia [2010] HCA 28
Division: Division 2 Family Law Number of paragraphs: 34 Date of last submission/s: 4 March 2022 Date of hearing: 18 February 2022 Place: Dandenong Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Ressan Lawyers Advocate for the Respondent: Mr Smith Solicitor for the Respondent: BSA Legal Advocate for the Independent Children's Lawyer: Mr Lynch Solicitor for the Independent Children's Lawyer: Peter Lynch ORDERS
DGC 3161 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GROVER
Applicant
AND: MS HANNON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
17 MARCH 2022
THE COURT ORDERS THAT:
1.All existing orders be discharged.
2.All extant applications be dismissed.
3.The Mother have sole parental responsibility for the child of the relationship, X, born in 2011 (“the Child”).
4.The Child lives with the Mother.
5.The Father’s time with the Child be reserved.
6.The Child spend time with the Father as agreed between the Mother and Father in writing.
7.That the father communicate with the Child by sending at regular intervals, cards, gifts and presents to X which the Mother shall pass onto the said child.
8.That the Mother ensures that the Child has access to the Father’s mobile phone number and will facilitate electronic communication between the Father and the Child as per the child’s wishes.
9.To facilitate Order 8 herein, that the Father ensure that the Mother has an updated telephone number through which the Child can communicate with the Father.
10.That the Independent Children’s Lawyer contact the Child forthwith to explain these Orders, with the Mother to facilitate such.
11.That upon Order 10 occurring, that the Independent Children’s Lawyer be discharged.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Grover & Hannon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
On 28 January 2022, I directed that the matter be adjourned for interim defended hearing on 18 February 2022 to consider whether the father had reasonable prospects of success within the meaning of section 45A of the Family Law Act 1975 (Cth). Perhaps the most salient factor that held me to make that order was the recent receipt of the report from Ms B, a family therapist, to which it will be necessary to return. It is appropriate, however, to begin with some general remarks about the terms of section 45A.
Section 45A
Section 45A relevantly provides that:
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
In Spencer & The Commonwealth of Australia [2010] HCA 28, French CJ and Gummow J said at [25], in respect of the equivalent provision in the Federal Court Act:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success.
The plurality of Hayne, Crennan, Kiefel and Bell JJ dealt with the matter at [50]–[60], which I do not propose to set out in full although I have regard to the entirety of that passage. At [58]-[60], the court said:
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success.
As I said in Pedrad & Pedrad [2021] FCCA 80 at [4]:
The matter was also authoritatively considered in the case of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60. At [45], Rares J gave his view of the matter which I refer to by reference but will not read out, and Gordon J gave her views at [123] - [134]. Once again, I have regard to all those matters but do not propose to read them out. But at [132], her Honour said this:
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party.
I omit reference to authority.
I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
With those matters in mind, I come to the history of the parties.
The father was born in 1988 and the mother was born in 1990. They were in a relationship for some seven years, and their son X, with whom we are presently concerned, was born in 2011. The relationship ended in 2012 and the mother entered into a relationship with Mr C. Despite some ups and downs that relationship continues and their two children, D born in 2014 and E born in 2015, live together with X in their household.
X has always lived with the mother as his primary carer, and despite some occasional difficulty it would seem that a spend time regime with the father proceeded relatively uneventfully until 2018. It appears that at that time the father re-partnered with Ms F. It is the mother’s case that the relationship between X and his father deteriorated thereafter and it is the father’s case that this was either not to the extent that the mother asserted or that it was a development that arose solely from the mother’s undermining of the paternal relationship.
The father commenced this tranche of proceedings with two contravention applications lodged on 17 June 2021 and 18 July 2021. Subsequently, the mother filed an initiating application seeking in effect that the father’s time be reserved until successful family therapy could be effected. The father’s response dated 15 September 2021 sought an immediate short-term change of residency and then for equal time regime. The father’s affidavit filed contemporaneously with the response can, I think, fairly be described as placing entire blame for the present state of affairs on the mother.
Following the appointment with an Independent Children’s Lawyer orders were made on 26 October 2021 which reserved the father’s time, ordered the father and child to attend reportable family therapy with G Psychology or such other person organised by the Independent Children’s Lawyer, that a copy of the 11F report dated 22 October 2021 be provided to the counsellor and that both parents enrol and complete a family violence counselling program at H Counselling and the Parenting After Separation Program at J Counselling.
From an affidavit filed by the mother on 26 January 2022 it is apparent that she has addressed those orders. As the Independent Children’s Lawyer pointed out when the matter was before me, it is not clear that the father has done those things.
THE SECTION 11F REPORT
The 11F report noted at paragraph 3 that in addition to parental responsibility and X’s live with and spend time arrangements, this dispute included –
If the narratives provided to Court in regards to X experiences whilst in the care of Mr Grover and corresponding emotional impact are in fact indicative of his experience and Mr Grover is dismissive of these; or has Ms Hannon embellished narratives provided by X.
The report noted the mother’s assertions of verbal abuse and property damage during the relationship to which X had been exposed and the mother’s concerns about potential for future harm towards X in the care of the father (paragraph 4). The report noted the father’s denials of family violence and his assertion that the mother had been denigrating him since separation (paragraph 5). The report noted the allegations made against Ms F of abusive behaviours towards X but the father was perplexed as to why they had been made surmising that the mother was jealous (paragraph 7).
The report noted reports and Department of Families, Fairness and Housing which appeared to have maintained primarily to the parents’ respective partners (paragraph 9). At paragraph 12 the report noted:
It is evident the separation and cessation of the relationship between Ms Hannon and Mr Grover has eventuated in an unhealthy and counterproductive co-parenting relationship. There appears to be continual friction and the parties consistently enter into disputed conversations about alleged incidents pertaining to Mr Grover’s parenting choices and spend-time with X.
The report went on to note the mother’s difficulties, given her asserted view that the father-child relationship was important, but also the need to keep X safe, leaving her stuck in the middle (paragraph 13).
At paragraph 14 the report noted:
Mr Grover felt as though there were no concerns in regards to X safety or wellbeing in his care and that alleged incidents that had been communicated to Ms Hannon were simply untrue. Mr Hannon appeared to be unsure if it was X who was exaggerating these accounts to Ms Hannon or if it was Ms Hannon who would embellish the narrative, and made no definitive statements pertaining to this. Mr Grover could not identify any reason for X to exaggerate the truth, nor was he able to provide any clarity in regards to why Ms Hannon may act in this manner, apart from “maybe something happened in Ms Hannon’s life”. Mr Grover wanted Ms Hannon to side with him, trust his version of the narrative and back him up when speaking to X about these issues and promote the relationship between them.
It is worth setting out the interview with X in full:
15.X (10 years old) was a very articulate child who spoke clearly, specifically and directly about his feelings and the origins of these. This capacity is mostly likely attributed to a combination of his own personality, having a reflective mother and maternal grandmother who appeared to value the importance of verbally expressing feelings, as well the weekly counselling he has/ is engaged in.
16.X is in Grade 5 and reported having lots of friends and he loves football (both playing and watching) however due to the lockdown hasn’t been able to train or play much this year. X is looking forward to playing cricket over the summer months. X provided a thoughtful narrative when describing his family (maternal) which was inclusive of their interests and the activities they do together. X expressed no worries or concerns about his current living arrangements and spoke with love and affection about Ms Hannon, Mr C and his “nannie”, who “helps me when I’m upset….we go to the lounge with a cuppa tea and chat”.
17.The word ‘safe’ was described by X as meaning “people are caring and you are safe, and you feel comfortable”, for which he did not associate feeling this way when with Mr Grover. X said he wished Mr Grover “would be a lovely dad” but that instead he is worried about spend-time as he doesn’t “like talking to dad… he says I’m a liar…. he gets angry and kicks stuff” and overall X feel “uncomfortable”. X said he feels like Mr Grover “comes to school and ruins it, comes to football…. and says nasty things” and “he doesn’t care about my feelings”. X expressed the wish not to see Mr Grover, stating “I’ve given him so many chances… I don’t feel comfortable…. I gave it five years”. X expressed the above behaviours of Mr Grover makes him “feel down”, and as though “I can’t even speak…. my tears get struck in my head”. X said this experience has left him feeling “really sad and uncomfortable”. X stated that he is having nightmares and was worried Mr Grover would “take me away”.
18.X also expressed feeling let down and uncared for by Mr Grover in regards to alleged incidents with Ms F, and felt as though he was not protected by Mr Grover, who instead condoned the alleged behaviours from Ms F.
19.X appeared somewhat open to the idea of family therapy/ counselling, however also displayed trepidation about this and was concerned and not comfortable, at this stage, to be the in same room as Mr Grover during any such sessions.
20.In regards to any future spend-time, should the relationship with Mr Grover improve through family therapy/ counselling, X expressed he thinks he would want “less” spend-time than what was originally in place..
At paragraphs 21-24 the report continued:
21.It is apparent X has been significantly impacted by historical spend-time with Mr Grover and the ensuing conflict between his parents. It appears X has relied on Ms Hannon to explain Mr Grover’s choices and care for his emotional wellbeing following such events, consequently there appears to be feeling of resentment and abandonment towards Mr Grover.
22.Mr Grover communicated he felt the historical spend-time arrangements did not afford him the opportunity to build a reliable and close relationship with X. However according to both parties Mr Grover had relative consistent spend-time for approximately six years post separation. Whilst it is likely parental conflict has contributed to the current dynamics, there also appears to be a lack of articulation or understanding from Mr Grover as to the impact on X. Any future formation of a viable, dependable and emotionally safe relationship should not be at the expense of X as he is the child. Regardless of the reason as to why X has communicated not feeling comfortable in Mr Grover’s care, it should always be the adult in the parent-child relationship which makes the biggest move toward that relationship as a means of repair and not something the child should be responsible for. X will need to see commitment, reliability and humility in order to build trust again with Mr Grover.
23.The addition of Ms F in the spend-time and relationship between X and Mr Grover appears to have created adverse dynamics and negatively impacted the quality to spend-time. It also appears Ms F may have been responsible for parenting strategies which, due to her own age, may have been developmentally inappropriate for both X and Ms F. This could have placed unnecessary burden on a young teenage woman to problem solve in a way beyond her capacity leading to inappropriate behaviour management and an emotionally unsafe environment for X.
AGREEMENTS REACHED
24.Both parties agreed therapeutic repair would be required as a starting point in regards to any potential rebuilding of the relationship between Mr Grover and X..
The report went on to recommend that time remained reserved until such point in time whereby family therapy commences, and reportable findings are provided to the court (paragraph 27). The further developments thereafter were to depend upon the trajectory of the family therapy.
It will be noted that the surmises by child expert K as to the role of Ms F and the like spring from what are very serious assertions said by the mother to reflect reports to her from X of alleged conduct on Ms F’s part, including, on one occasion, holding him under the water during a holiday in Town L. I have not dealt with these in any way because they are all denied outright by the father, as the report itself noted.
THE REPORT OF MS B, CLINICAL FAMILY THERAPIST
Leaving aside formal matters, the report commenced with reports of sessions with both the mother and the father. In the context of the materials filed, these do not take the matter much further. They reflect the parents’ views of their own relationship and its end. I note that the father was of the view the mother was not encouraging X spend time with him.
The part of the report that is most pertinent, and indeed very concerning, is the report of the sessions with X himself, which I will set out in full.
In sessions with X he spoke of being “frustrated with his father”. He talked of concerns that he remembers his father “punching walls” when he “lost it” and that he left holes in the walls of the house at times. X said that he felt that his father often blamed him for his anger, leading X to be upset and frustrated.
Additionally, X talked of having difficulties in accepting Mr. Grover’s partner, Ms. F, and that things between he and his father became worse when Ms F partnered with his father. X stated that Ms F would yell at him and that she was “nasty”. He believed that she ruined his relationship with his father as she didn’t like him. X acknowledged that things began to go wrong with he and his father’s relationship when Ms.F came into his father’s life.
After Family Therapeutic sessions with the writer, a couple of weeks apart, X’s continuing theme was one of being forthright and adamant around any further contact with Mr Grover. He brought notes to a session to read to the writer as to why he no longer wanted a relationship with his father which he resultantly shared with his father in a subsequent triadic session.
X talked of lack of trust, dishonesty, lack of care, father yelling at him, calling him a liar, not being there for him, and being hurt by his father both emotionally and physically.
In the triadic session with X, Mr Grover, and the writer, X openly shared views about his father, and was adamant that he did not want to see him again in the future.
X was of the opinion that Mr Grover would never change as he had given him many chances in the past to do so. X also spoke of being scared of his father and what he believed he could potentially do to both he and others.
X’s belief that Mr Grover will not change, has led him to mistrust his father. He has felt let down by him, saying that his father has promised having one on one time with X alone many times without Ms F being present and that whilst his father had agreed this did not eventuate.
X presented at sessions with clear and assertive thinking. He, at no stage, deviated from his initial stance and/or view of his father and verbalised on a number of occasions his lack of interest in pursuing a relationship with him.
The report continued under the heading, “In Summary”:
In this matter, the expressions of negativity and unwillingness to contemplate spending time with his father were vocal and intense. X holds little or no regard for his father. From the sessions, X presented as a mature and confident young boy who has strongly held views about his father along with strong resolve. As such, it is unlikely that he will alter his stance about his father and/or his behaviour in the immediate future, as X appears to not trust Mr Grover to follow through with what he says he will do.
In the three sessions that the writer had with X there was little, if any change in his thinking or commentary about his father or any desire or interest in seeing him. He was forthright in his conviction and articulated clearly his wishes.
It is the writer’s opinion that X has a view that his father has not shown any commitment to their relationship and as such, as time has progressed, X has very little connection with either his father or indeed the paternal side of his family, and concomitantly appears disinterested in any form of re-connection.
Future Steps:
At this time, X does not wish to spend time with his father with whom he has a tenuous relationship. Over time this may change, although the prognosis is poor, and unlikely. X is an articulate and mature young boy and as such his wishes should be given weight. Mr Grover, as the parent, could continue to communicate with X through letters, cards, or messages etc. however the likelihood of this progressing in other ways at this stage is minimal.
Initial supervised spend times with Mr Grover with someone of X’s choice may be a first step in re-building the father/son relationship but as mentioned above, at this stage is unlikely and improbable.
THE SUBMISSIONS MADE AT COURT
Counsel for the Mother
Counsel for the mother referred to the age of the child in the orders made in 2014. He referred to the relationship’s deterioration over the last three years and the father’s new relationship with Ms F. The last overnight time spent was in May 2021 and the last time X saw his father (apart from the counselling) was at school in 2021. Counsel referred to the 11F report and the alleged incident. And the undoubted fact that on 14 January 2020, after the trip to Town L, the father had texted the mother, saying that he did not wish to see X at that time. It was submitted that the father’s application for an immediate change of residence and thereafter equal time showed a lack of insight and that the matter had no reasonable prospects of success.
Submission of Counsel for the Father
The father was generally content to rely upon the written submissions previously forwarded to the court. These submissions point to the fact that summary dismissal is, of course, a very serious matter. The reference to the well-known of General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 does however need to be assessed against the lowering of the bar introduced by section 45A. It was submitted, correctly in my respectful view, that the father’s case should be taken at its highest although, in that regard, I refer to and repeat the observations of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited & others [2008] FCAFC 60 set out above.
The Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer indicated that he took a different position to the parties. The orders made on 26 October had required counselling with H Counselling and a parenting after separation course. It was not known if the father had complied. There had been a report from family therapy but it was not known if it had been continued. The report has said that the father might send gifts, cards or messages, but this apparently had not been done. The father had not filed any affidavits since 15 September 2021, despite the orders before a hearing under section 45A. His formal position still therefore remained equal time with an interim change of residence. The Independent Children’s Lawyer submitted that if that was the position, then it would have no reasonable prospects of success. He indicated that this might change if the father amended his position. In response to that submission, I gave the father a further seven days to file any amended application.
The father did indeed file an amended application on 24 February 2022 in which he sought that the parties including X continue to attend upon the family therapist at his expense. When the matter was returned before the court for mention to consider this, Counsel for the mother opposed family therapy and relied upon the report of Ms B. He observed X is in grade 6 and attends upon the school psychologist which is a sufficient therapy. He has no opposition to the Independent Children’s Lawyer’s proposed order that the Independent Children’s Lawyer meet the child via Zoom to explain the matter, that there be provision of a phone number and address of the father and cards gifts and letters. The spend time should be as agreed in writing.
The Independent Children’s Lawyer indicated that he had no strong position in the matter and that the orders put forward were simply an alternate position. He noted that there was no indication as to compliance by the father with the orders made in October 2021 but referred to the general principle that everyone is entitled to their day in court.
Counsel for the father indicated that he had no instructions as to compliance with the October 2021 order. He noted that counselling had been ineffective thus far but there had only been three sessions. That the counsellor had simply thrown up their hands.
Subsequently, the same day Counsel advise the court that the father had been rejected by H Counselling for family violence counselling as he did not fit their criteria but had engaged instead with a private counsellor, Mr M. The father had enrolled with J Counselling for a Parenting after Separation course and his first session is due to commence on 7 April 2022, the earliest date available.
CONSIDERATION
As indicated, I accept that I must draw all reasonable inferences in favour of the father, in so far that there are disputed versions of the facts. The tenor of the 11F report and of the report of Ms B tend to suggest that, at least in respect of the role, so to speak, of Ms F, the father’s complete denials of anything untoward might need to be approached with caution. Nonetheless, I accept in his favour that he has roundly denied any mistreatment of any sort by X in his household, either by himself or Ms F. And I am bound to accept that these denials may be made good at trial.
Those matters, however, failed, in my view, to engage with the test that the Act prescribes. X’s position, as expressed to the 11F writer and to Ms B, could not have been clearer. Ms B, who has spent more extended with X, expressed views that could really not be more stark The two salient findings may be repeated:
At this time, X does not wish to spend time with his father with whom he has a tenuous relationship. Over time this may change, although the prognosis is poor, and unlikely. X is an articulate and mature young boy and as such his wishes should be given weight. Mr Grover, as the parent, could continue to communicate with X through letters, cards, or messages etc. however the likelihood of this progressing in other ways at this stage is minimal.
Initial supervised spend times with Mr Grover with someone of X’s choice may be a first step in re-building the father/son relationship but as mentioned above, at this stage is unlikely and improbable.
In the face of this situation, the chances of the father achieving even orders for further family therapy at a final trial must surely be assessed, pursuant to section 45A, as having no reasonable prospects of success. Parenting matters are concerned, pursuant to section 65AA, with the best interests of the child as the paramount consideration. Applying that to these facts produces the inexorable result that the court’s finding must be that the father has no reasonable prospects of success, save to the extent that I would be prepared to make orders as recommended by Ms B to give the father permission to send cards, presents and the like.
It is no small thing to make orders of this sort on what is an interlocutory basis. If given the Court no satisfaction to do so. But X position as set out above in my opinion can lead to no other outcome. These will be orders accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 17 March 2022
0
2
0