Imani and Etola

[2016] FamCA 882

FAMILY COURT OF AUSTRALIA

IMANI & ETOLA [2016] FamCA 882

FAMILY LAW – PROCESS AND PROCEDURE – adjournment – non-compliance with evidence filing – costs

APPLICANT: Ms Imani

RESPONDENT: Mr Etola

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 4188 of 2015

DATE DELIVERED: 14 September 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 September

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Parker

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr David

SOLICITOR FOR THE RESPONDENT: Malkin Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1.The trial set down for hearing on 25 October 2016 be and is hereby vacated.

2.These proceedings be adjourned to me on 19 October 2016 at 9:00 a.m. (“the adjourned date”) for directions and determination of any outstanding interim issues in respect of which either party has filed an application in a case or a response to an application in a case AND IT IS NOTED that the hearing on the adjourned date will be confined to one hour. (Amended 19 September 2016)

3.By not later than 28 September 2016 at 12.00 noon the husband comply with paragraph 7 of the Order made on 14 April 2016 by filing and serving a statement of financial circumstances and otherwise comply with any other order for the filing of an amended application or response and all evidence upon which he relies by not later than 28 September 2016 at 12:00 noon.

4.I reserve liberty to the mother to apply for any costs thrown away by virtue of the husband’s non-compliance with the filing of material, such application to be made before the learned trial judge.

5.The parties do all acts and things necessary, including attendances by themselves and the children B born … 2006 (“B”) and C born … 2011 (“C”) (collectively “the children”), upon Dr D, psychiatrist, for intensive family therapy as recommended by the family consultant in the report dated 23 August 2016, such therapy to commence as soon as practicable.

6.The initial responsibility for payment of the reasonable cost of the therapy with Dr D be reserved for determination by me on the adjourned date.

7.The parties do all acts and things necessary to cause the child B to undergo an assessment for autism by a psychologist, being Ms E.

8.The husband be solely responsible for the payment at first instance of the reasonable cost associated with the assessment by Ms E, psychologist, of B and be at liberty to make an application for a contribution by the mother of such costs at the final trial. The husband ensure that an amount equivalent to the estimated cost of the assessment, as notified to the husband’s lawyer by the independent children’s lawyer, is deposited in clear funds with the independent children’s lawyer within two working days of the notification.

9.Any face to face time between the children (or either of them) and the father be suspended between now and the completion of the intensive family therapy provided for in paragraph 5 of this Order.

10.Notwithstanding paragraph 9 of this Order, the parties may agree that the children spend time with the father with or without conditions and independently of, or in accordance with, the recommendation of the family therapist and any such agreement in writing between the parents and be notified to the independent children’s lawyer.

11.I grant liberty to the mother to file and serve an application in a case seeking an interim settlement of property, such application to be filed by not later than 5 October 2016 and be set down for hearing before me on the adjourned date.

12.On or before 12:00 noon on 12 October 2016, the husband file and serve any response to any application filed by the mother pursuant to the preceding paragraph of this Order and all evidence upon which he relies, in addition to the evidence filed pursuant to paragraph 3 of this Order,

13.The independent children’s lawyer forthwith ensure that Ms E, psychologist, and Dr D, psychiatrist, each have a copy of the following documents:-

a)The affidavit of Ms F sworn on 10 November 2015;

b)The affidavit of Dr G sworn on 5 November 2016;

c)The family report of Ms H dated 23 August 2016;

d)The Observational Report of the Family Contact Service issued on 6 September 2016;

e)My reasons for decision this day;

together with any other document which the independent children’s lawyer considers would assist either expert in these proceedings and in respect of which the other parties do not raise an objection.

14.Independently of paragraph 13 of this Order, the independent children’s lawyer ensure that any expert witness in the parenting proceedings, including but not limited to the practitioners referred to in paragraph 13 of this Order, have a copy of each other’s reports.

15.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

16.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imani & Etola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4188 of 2015

Ms Imani

Applicant

And

Mr Etola

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ex Tempore

1. Part of these proceedings concern the children B born in 2006 (“B”) and C born in 2011 (“C”) (collectively “the children”). The parenting applications come before me as a telephone mention whilst I am out of the Registry, and following the release of a family report prepared by Family Consultant Ms H pursuant to s 62G(2) of the Family Law Act 1975 (Cth) and dated 25 August 2016. I have pronounced orders, and, due to technological problems, was unable to deliver the reasons for decision in the presence of the parties and said I would do so subsequently. These are those reasons.

2. Before the court are property matters and child related matters. The latter have more complexity, I understand, than the former. B is about 10 and a half years old and C is about four and three-quarter years old. For ease of reference, I will refer to the parties as the mother and the father.

3. The parties are not in agreement about the final disposition of any part of the parenting proceedings, but they have appeared to take on board some of the recommendations of the family consultant. Those recommendations appear at [88] of the Family Report dated 23 August 2016 and are as follows:

   In the absence of evidence to suggest otherwise, it is respectfully recommended that:

   ·The Court may wish to consider whether it may be premature for this matter to be finalised at this time.

   ·In the event that the matter remains before the Court, it is recommended that the family attend upon a practitioner such as [Dr I], [Dr J] or [Ms K] to explore options for re-establishing the children’s relationship with their father.

   ·It may be considered advisable for the current spend time arrangements to be suspended whilst the family is engaged in the abovementioned therapeutic process and for any time to be re-established as guided by the treating practitioner.

   ·As suggested by [Dr L], the parents seek a second opinion regarding whether [B] meets the criteria for a diagnosis of Autism Spectrum Disorder.

4. There are a number of issues which I have to decide today.

5. The first is whether the trial date of 25 October should be vacated entirely or, if I separate the parenting proceedings from the financial proceedings, the trial date be retained to determine property matters.

6. The second is who should conduct the intensive therapy which is recommended by Ms H.

7. The third issue is whether Dr L should conduct the assessment of B to see if she is on the spectrum for an autistic disorder, and, if so, who should pay for that.

8. The fourth, whether time between the father and the children, which is currently ordered to be supervised but which is not taking place, ought be suspended.

9. The mother has also raised the issue of a further interim property settlement or litigation funding order. She seeks leave to make an oral application in circumstances where she has given little or inadequate notice to the other side. The father opposes the application being made. It seems that the mother seeks a payment to her which, together with other funds received, would amount to her having around 20 per cent of the asset pool, which she says is comfortably within her entitlement. On a preliminary basis that does not seem unreasonable but the father is entitled to notice of applications made against him or his interests so that he can be properly advised. I will not accede to the mother’s application for leave to make an oral application. If necessary, the mother can make the application in the proper form. When I say “if necessary”, the father now knows what the mother seeks and the parties can negotiate that issue and obviate the need for any formal document or hearing. If they cannot do so and the mother makes an application, there may well be implications – one way or the other – in relation to costs.

10.The issues which I am required to decide must be determined consistently with the interests of the children and I will do so.

Vacating the trial date

11.This matter is currently set down for hearing of some days’ duration, to commence on 25 October 2016. The competing applications are in relation to parenting and property matters. It is agreed by all that, having regard to the family report, a final hearing of parenting issues at this stage is premature. However, the mother seeks to proceed in relation to property matters and she does so on a number of bases. One, she says she is very short of money and all of her capital, it appears, is tied up in the former matrimonial home. She is some $180,000 or $190,000 in debt, which she is having difficulty servicing on an income derived from three days’ per week employment as a health professional.

12.The mother has complied with orders I made on 14 April 2016 for filing of evidence in anticipation of the trial. The father has not. The father should have filed a statement of financial circumstances on 14 July 2016 and failed or neglected to do so. His affidavit of evidence in chief should have been filed but he has failed or neglected to do so. The father says that his failure to comply with orders to get the matter ready for trial is because he had to attend counselling which was recommended to him and he has been “occupied with child matters”. I do not accept these as adequate or proper reasons why he has failed to comply with orders of the court. I will now make orders that he comply with his outstanding obligations within approximately two weeks of this date.

13.The mother seeks to proceed with the property application on the basis that it is timely to do so. She says that the real property has been valued, and she does not want to have that valuation go stale and be put to further expense for an updating valuation for a postponed property hearing.

14.Having considered the submissions made on behalf of the parties, I am not of the view that it will serve this family to have two trials, that is, a contested trial in relation to property matters and a contested trial in relation to parenting matters. The parties’ entitlements to a final alteration of property interests need to be considered by the court in light of, inter alia, s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The parenting arrangements for the children into the future will be relevant pursuant to s75(2)(c) and (d) and are not able to be forecast with any certainty at this point. For instance, on the husband’s case, he may ultimately be entitled to a generous amount of time with the children which could preclude him from taking out some employment position. His income earning capacity may be impacted. On the mother’s case, however, the husband might have absolutely nothing to do with the children and she will be the sole parent with no input or practical support from him. Whilst not raised by the parties’ practitioners, I cannot exclude the possibility that historical evidence in relation to parenting may have some bearing on my assessment of the respective contributions of the parties as homemaker and parent.

15.I conclude that it is appropriate that the parenting and financial matters be determined together, and as soon as the parenting matter is ready to proceed. Accordingly, I do not accede to the mother’s application to have two trials.

Intensive therapy

16.The family consultant suggested intensive therapy for the family for the purpose of exploring re-establishing the children’s relationship with their father.

17.The evidence of the family consultant is untested, but I note her comments at paragraph 74 that, notwithstanding the difficulty between the children and the father at this stage:

It would seem a concerning outcome for the children’s longer term emotional and psychological health for the matter to be finalised on the basis of no time, without some further supported attempt to assist the children and their relationship with the father.

In the body of her report, the family consultant opines that:

[77]. What seems clear is that [current parenting] arrangements as they presently stand are not sustainable in the longer term, nor are they assisting in developing or maintaining the children’s relationships with their father. Change, therefore, needs to be implemented with little further delay.

[78]. There would appear to be value in providing the children with professionally supported opportunities to, at a minimum, develop an understanding of their father that is more neutral and at best, develop positive and strong relationships with him.

[79]. [Mr Etola] has proposed that the family engage in an intensive type of therapeutic process to assist in working toward the children re-establishing a relationship with him. There is merit in such a proposal and the writer would be supportive of this being implemented. A non-therapeutic approach in this matter will be unlikely to have any significant or positive impact upon the children’s relationships with their father.

[80]. The success of such a therapeutic intervention will be largely dependent upon [Mr Etola’s] ability to accept feedback regarding the children’s experience and act appropriately upon such feedback. At present, there are few indicators that [Mr Etola] has the capacity for self-reflection and modification of his behaviour however he is encouraged to consider that in the absence of him doing so, his relationships with the children will not be re-established. [B], an exceptionally mature girl for her age, seems to have ‘outgrown’ her father’s somewhat infantile humour and behaviour and [Mr Etola] has not been able to join her by moderating his behaviour in any fashion. In this regard, and others, [Mr Etola] seems unable to take cues from the children regarding their own needs, indicating that he lacks attunement with the children.

[81]. [Mr Etola] remains categorical in his belief that [Ms Imani] has engaged in a process of alienation; such a view is not supported by [Dr L]. Whilst it is the writer’s view that [B] presented at interview with a clear agenda, that being to ensure she did not have to spend future time with her father, the writer concurs with [Dr L] that this is likely the result of [B’s] own lived experiences of her father and the discomfort his behaviour has and continues to cause her.

18.The family consultant suggested a number of practitioners in her report, including Dr I and Dr J.

19.Dr I is apparently available in late October for a four-day intensive course and thereafter for therapy. Nobody could tell me the position in relation to Dr I’s fees or the eligibility of the parties for a Medicare rebate. I asked for submissions. None were forthcoming. After I had made the order, Mr David for the respondent husband, said he might have some information about Dr I’s fees but my order had already been made.

20.The cost associated with attendance on Dr J is $300 per hour, subject to a Medicare rebate.

21.The wife has proposed Dr D as therapist. Dr D is not mentioned by the family consultant but nor is he excluded by her. Dr D was suggested to the mother by a health professional for one of the girls, Dr Ls, psychiatrist, who treats B. I am satisfied that Dr D is a qualified practitioner. I was informed that he can see the family pursuant to a mental health plan or at reduced cost. His assessments would commence somewhat later than Dr I’s availability indicates she could commence but not so much later that it causes me concern. I am satisfied that the father and the independent children’s lawyer have had adequate notice of the mother’s proposal that the therapy be by Dr D notwithstanding that there is no formal application.

22.Dr I was originally suggested by the father and that is stated in the family report of Ms H. It is a concern for the mother that Dr I is a practitioner of the father’s choice. Being suggested by the father does not exclude Dr I from consideration as the therapist. She is an entirely qualified and appropriate practitioner to undertake the therapy. However, I am mindful of the mother’s viewpoint that Dr I was selected by the father and his choice communicated to the family consultant and that the mother will not feel as comfortable with that practitioner as she would with Dr D, who I am satisfied is equivalently qualified. When these proceedings were first before me the parties agreed that there ought to be a full family report. The mother sought that the further report be prepared by Ms F, counsellor, who had already completed a report. The father opposed Ms F as the single expert witness. I accept that Ms F’s then published report was adverse to the father. Ultimately, I was persuaded that a family consultant/psychologist attached to the court was the appropriate expert to prepare a further report for the trial. Factors influencing my decision at that early stage included that the assessment would be free of cost to the parties, the family consultant could be involved in more than one assessment, the independent children’s lawyer may require assistance to meet with the children and, in due course, the family consultant would be on hand to explain any outcome in the parenting proceeding to the children. I also considered that a psychologist would be better qualified to comment on personality disturbances of family members although I accept that Ms F is ably qualified to comment on behaviour. It was apparent that the mother was disappointed with the outcome vis a vis Ms F. I accept the submission of counsel for the mother that the mother feels as though she has been disadvantaged and the father has been advantaged. That is not the case but I accept that the mother feels that it is the case.

23.When it comes to choosing between Dr D and Dr I, I do wish to ensure that the mother is ‘on board’ with the therapeutic process and to minimise the danger of her consciously or unconsciously withholding her support of the girls in this process. It was open to the parties to have met with Dr I before today, and to hear from her how the therapy would progress, but notably that has not occurred. The hearing has been conducted by submissions only. I have no evidence of the precise nature of the therapy offered by Dr I or Dr D although the gist of what needs to be done is accessible from the family consultant’s recently published report. To the extent that one or other of the proposed therapists might not be equipped to undertake therapy is a matter on which I would have expected the parents and/or the independent children’s lawyer to adduce evidence but they have not done so. Likewise in relation to costs, there was no information imparted by submission or evidence as to the comparable cost for therapy by Dr D or Dr I.

24.I should say something in relation to the therapy. First and foremost, I commend the parents for agreeing to the recommendation of the family consultant that there be therapy. That said, whilst the children may be considered to be in need of therapy, all indications are that the more serious pathology lies with the parents. The older daughter is described as mature but the report leaves me with the impression that she is also burdened. B’s maturity does not mean that she is not vulnerable and perhaps less able than her sister to strike a balance between the competing demands of her parents. The negative impact of the inter-parental conflict to which B has been exposed may be so entrenched that no treatment or therapy can be effective. However, the untested evidence of the family consultant, Ms H, indicates that therapy at this stage may assist. It should be tried, because, if successful, an appropriate relationship between the girls and the father could be developed in a way which would be of benefit to the girls. There does not appear to be much hope of a meaningful relationship between the girls and the father otherwise.

25.I make clear that therapy for this family is not therapy for therapy’s sake. The parties have come to a mutual understanding that therapy is something that could assist the daughters. It is not an experiment. The therapy must be conducted with a real prospect of an ongoing benefit to the girls and, in my view, must not be unnecessarily prolonged. Put another way, the girls are not required to participate in therapy until they decide that they want to spend time with the father.

26.I accept the parents’ joint position that the kind of therapy suggested by the family consultant will be for the children’s benefit and I will make orders to facilitate it. However, if in the future the therapy does not seem to be assisting the girls, it may be appropriate to cease therapy and for the girls to be left alone and not be subject to any more assessments, litigation or interventions because all of these are intrusive, none are neutral.

27.I expect that at the conclusion of the therapy, it will be possible to assess whether the net benefit to the children of having an ongoing relationship with the father outweighs the disadvantages associated with maintaining a meaningful relationship with him including the impact (if any) on the mother’s parenting capacity of the girls having a meaningful relationship with the father. The court’s determination will not be based solely on the outcome of the therapy. The opinion of the therapist will not be dispositive in the parental proceedings. Final parenting orders will be made taking into account all relevant evidence in the case including the impact on the children of continuing to be exposed to the very high level of parental conflict. An outcome in which these two girls have parents whose parenting capacity is significantly impaired or compromised may be considered less beneficial for the children than being cared for by only one parent and to the exclusion of a meaningful relationship with the other into the future. I am not providing the mother with a charter to sabotage the establishment or re-establishment of the girls’ relationship with the father. Any effort by her in that regard will be easily identified and reported on by the therapist and will carry consequences.

28.I will order that Dr D be the therapist. I will direct that these reasons for decision be sent by the independent children’s lawyer to the therapist.

Assessment of B

29.There is apparent agreement that B ought to be assessed for autism. A psychologist, Ms E has been sourced by the independent children’s lawyer. The parents are agreeable.

30.The issue is payment of the psychologist’s fees. The mother says that the father should be paying the fees; the father says the fees should be shared. At the moment, the father is not paying anything for the treatment by Dr L of B. It is appropriate that the father can pay for this assessment, at least initially. I will reserve liberty to the father to make the application subsequently that the mother make a contribution to the cost of the assessment.

Suspension of time to be spent

31.The family report writer, for apparent good reason, signals that the current spend time arrangements should be suspended whilst the family is engaged in the therapeutic process (which will now be undertaken by Dr D).

32.The mother seeks the spend time arrangements be suspended now. The lawyer for the husband submits that his client has not seen the children for nigh on nine weeks. It was conceded that they won’t get out of the car in order to see him. The father agrees that the time between himself and the girls should be suspended during the therapy but, he submits, not in anticipation of the therapy.

33.As with any parenting order, I take the best interests of the children as the paramount consideration. This is a complex case. It is a case where the relationship between the children and the father is tenuous; that is, it is not clear to me whether it has broken down because it is not clear to me as what level ever existed.

34.The family consultant opines in her report that the current spend time arrangements are not working satisfactorily. I accept that evidence. I want to proceed by doing least harm.

35.I am satisfied that it is in the children’s best interests to suspend their time with the father now, before therapy commences. I do so in order to minimise further negative interaction between the children and their father, including incidents in which the children refuse to get out of the car to visit the father. I want to avoid the non-compliance becoming entrenched behaviour for the girls and the girls becoming habituated to flouting the authority of their parents and the court - at least until such time as I am satisfied that they have the ongoing emotional support of a family therapist like Dr D.

36.I have given consideration to whether the younger daughter should spend time with the father, by way of supervised time, separately to her older sister. Having regard to the best interests of the girls as the paramount consideration, at this stage I am not inclined to order that the girls be separated. I think that separating the siblings, even for a few hours, to be fraught with difficulty and may well create even more tension. An exacerbation of tension is not conducive to therapy starting well.

37.I conclude that it is in the best interests of the girls that the spend time arrangements will be suspended as of now and until further order. It may appear to be somewhat ironic that I consider that an immediate suspension of time between the children and the father will provide the best chance of therapy being successful. However, no time is actually taking place due to the opposition of the children. I am satisfied that the suspension is consistent with keeping the children safe from emotional harm and ensuring an accurate assessment of the viability of the children being able to have a meaningful relationship with the father.

38.Of course, the parents may together agree that time between the father and the children (or either of them) can be resumed in the course of therapy with Dr D. If that occurs, the agreement should be committed to writing prior to any such time taking place. The arrangement should be communicated to the independent children’s lawyer. Whilst I have not made an express order to this effect, I envisage that the independent children’s lawyer will be able to, and will, confer with Dr D from time to time about the progress of the therapy so that she can form a view about whether it is in the best interests of the girls that the therapy continue.

Outstanding financial issues

39.As I have previously mentioned in these reasons, I have given the mother an opportunity to make an application for an interim property settlement in her favour and a deadline by which to file any such application.

40.The payment of the reasonable out of pocket expenses associated with Dr D should be a matter to be determined at the same time as the mother’s application for the interim property settlement. If no such application is made, then that date can be reserved for a determination by me of who should be responsible, at least initially, for the cost of the therapy with Dr D.

41.I reiterate my warning to both parties that costs are likely to be an issue and that an unsuccessful party may well face an order that he or she pay the costs of the other party.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 September 2016.

Legal Associate:

Date: 19 October 2016