Jelbart and Ganzer
[2018] FCCA 1771
•1 June 2018
0FEDERAL CIRCUIT COURT OF AUSTRALIA
| JELBART & GANZER | [2018] FCCA 1771 |
| Catchwords: FAMILY LAW – Parenting – interim proceedings – procedural issues of lack of available hearing time and matter determined “on the papers” – multiple opportunities given to Mother to provide written submissions to address her “issues” with the recommendations of a Family Consultant who prepared a detailed report (which included putting the child under “stress tests”) and who recommended a regime that provided for the gradual increase in the child’s time with the Father – the only “issue” between the parties relates to the increase in the child’s time with the Father – strained co-parenting relationship between the parties as well as during the relationship – primary independent evidence before the Court is from the Expert family consultant whose Report was prepared in July 2017 – barely any movement in the progress of the child’s time with the Father – usual problems of a Court placed in invidious position of “she said – he said” and little independent evidence – Family Consultant took relevant account of allegations of domestic violence – issues of “weight” of evidence in interim proceedings and procedural fairness in providing for matter to be dealt with “on the papers” in the absence and inability to provide early hearing time. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(3),65DAA Federal Circuit Court of Australia Act 1999 (Cth), ss.3(2)(b), 15, 42, 56 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Expense Reduction Analyst Group Pty Limited v Armstrong Strategic Jopson & Lilwall [2016] FamCAFC 262 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 Redmond & Redmond [2014] FamCAFC 155 Swain v Waverley Municipal Council (2005) 220 CLR 517 Vanzin & Vanzin [2014] FamCAFC 245 |
| Applicant: | MR JELBART |
| Respondent: | MS GANZER |
| File Number: | CAC 144 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | By Written Submissions |
| Date of Last Submission: | 10 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Yeend & Associates | |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson | |
ORDERS
Within 7 days of the date of these Orders, being by close of business on 8 June 2018, the parties are to provide the Court with an agreed Minute of Interim Consent Orders which (a) implement the recommendations of the Family Consultant, adjusted for the months that have lapsed since its release, and (b) provide for the procedural course this matter should take.
Absent agreement between the parties in relation to the Minute referred to at Order 1 of these Orders, the Orders Sought by the Father (which accord with the recommendations of the Family Report) will be made in Chambers, with adjustments for the 8 month time lapse between the date the Report was released and the date of the Orders.
IT IS NOTED that publication of this judgment under the pseudonym Jelbart & Ganzer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 144 of 2015
| MR JELBART |
Applicant
And
| MS GANZER |
Respondent
REASONS FOR JUDGMENT
Introduction
Two general comments are apposite at the commencement of these reasons that concern interim parenting Orders for four year old [X].[1]
[1] The reasons set out here have been revised from the transcript of the extensive oral reasons delivered on 1st June 2018.
First, in the latest instalment (but with another pending) of the high-action series, Mission Impossible (aka “MI5”), in one of the opening scenes one of the lead characters, Ethan Hunt, enters a “record store” (which unfortunately no longer exists) just off Regent Street in Central London, ostensibly in search of some “classical jazz” music. In a rejoinder to the [soon to be “assassinated”] young shop assistant he refers to a particular music player, a drummer who goes by the name of “Shadow Wilson.” She asks him knowingly why this person was known as “Shadow”: Hunt of course knows why - it was because he had a “light touch.”
I mention all this, not for light relief from the unfortunately escalating contest between the parties but for two specific reasons. First, in many, if not most, interim parenting disputes, the Court is in the long-recognised “mission impossible” position of making a decision on the basis of untested (and usually “untestable”) evidence. I refer to such authority later in these reasons.
Secondly, just as Ethan Hunt was [allegedly] in search of music that featured “Shadow Wilson”, so too the Court is here, and in many other matters, also in search of someone with a “light touch”. Usually and somewhat regrettably, the Court is only able to wield the terribly blunt and imperfect instrument of the law. Fortunately, in the current matter, the Court does have its own version, in a manner of speaking, of a “Shadow Wilson”, who is the highly experienced Family Consultant, Ms W. In July 2017, she prepared a privately funded, detailed Report which, in my view, provided the appropriately “light touch” for the interim resolution for these parties. Alas, that has not turned out to be true.
That said, as the Court hears very regularly, the greatest “light touch” for parenting matters is primarily for the parents to stop fighting. Experts of all kinds consistently proclaim the basic truth that the main (or one of the main) reasons for the behavioural and other problems with the child is precisely because the child is caught in the middle of a fraught contest between the parties who are further embroiled in litigation. Some parties recognise this and desist, not infrequently with professional assistance. Others are not able to do so.
Indeed, rather than take any responsibility themselves for the imbroglio that festers with every day in Court, some parents insist on blaming either the other party, or the Court, or their lawyer – anyone other than himself or herself. In such situations, often or usually, the contest must rage, at great cost to everyone, including most especially the child. And parties then wonder why his or her child remains “unsettled and distressed”!
Further, another reason for the earlier reference to the need and importance of a “light touch” is that precisely because of the heightened emotion and grief associated with highly contested parenting litigation is that the parents themselves (especially young parents as here) are often so close to the centre of the “action”, namely the care of the child, that they cannot see sufficiently clearly, or are indeed too obsessed with the child and her or his jangled emotional state, that they cannot (or are unable to) see the parenting wood for the trees that comprise it. Put another way, parents (especially young parents) can be so obsessed or focussed that every hiccup with the child is attributed to the child’s time with the other parent. This might be correct but it might not. Accordingly, the very significant utility in having an Expert, such as Ms W, in such a matter as this is precisely because she brings both objectivity and immense experience, which (in no critical way) the parents do not, and cannot, have.
The second preliminary comment comes from a regularly cited High Court case. In Swain v Waverley Municipal Council, Gleeson CJ observed, at [2]: [2]
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.
[2] Swain v Waverley Municipal Council (2005) 220 CLR 517.
In noting his Honour’s comments, I do not suggest that there is a risk of the parties (or their legal advisers) contemplating some sort of litigious war of attrition which will exhaust everyone (respectfully, except the lawyers) in every relevant respect – financially, emotionally, and psychologically.
Early in these proceedings, at or around the time that arrangements were being made to obtain a privately funded Family Report, I was advised by the experienced lawyer for the Mother that once the Report was obtained, the expectation was that the parties would attend mediation and seek to resolve the matter. That initial optimism now seems a tad misplaced because, the extensive Report, which issued in July 2017 from a highly experienced and well respected Family Consultant, appears not to have brought either the solace or the information that would enable the matter to be resolved. Indeed, if it ever be appropriate to measure matters by the consumption of the use of the Court’s always scarce public resources, this matter is one that has consumed well beyond most other matters.[3] And “we” are not even close to any final hearing. The interim contest drags on unrequited.
[3] The High Court’s comments in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 at [5] and [23] – 30] (French CJ) and [93] – [101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Aon v ANU”) regarding proper and diligent use of a court’s scarce public resources always remain cautionary and apposite.
All of this said, another High Court Justice outlined the complex morass that regularly consumes parties (and sometimes even their lawyers) as they struggle to see, let alone properly perceive, the parenting wood for the trees that comprise it. In AMS v AIF, Hayne J said, at [204] – [205] (internal citations omitted):[4]
The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms.” Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[4] AMS v AIF (1999) 199 CLR 160.
Another, and more direct, matter that encompasses what Hayne J said in AMS v AIF, is that typically in family law litigation there are contested issues of fact, especially (as here) in interim proceedings, which are invariably “coloured” by impressions, vagaries, past and present hurts, and convulsed emotions.[5] Usually in such circumstances, the Court is regularly unassisted by any independent evidence. Fortunately that is not the situation here as I have indicated, because of the Expert Report from Ms W from July 2017.
[5] See the modern locus classicus for such comments in the Full Court’s observations in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] – [82].
The difficulties regarding family law litigation, especially in interim proceedings, is well and regularly recognised by appeal Courts, but not always. The Full Court has regularly noted that decisions, especially interim ones, necessarily involve the exercise of a judge’s discretion in the midst of the convulsions of many competing but untested claims. Some of these Full Court decisions are noted later in these reasons. There will often be a “range” within which one or other judge might determine the matters in dispute. This is also to say that there is rarely one definitive or clearly “correct” answer. Indeed, one judge might take one particular view of things, and a different judge may well take a slightly different view. A “different” view is not, of itself, a “wrong” view.
Moreover, given how relatively broad judicial discretion is, provided it is not “plainly wrong” as understood in respected jurisprudential circles, having regard to what the High Court said in House v R many years ago, in almost all appeal Courts, such discretion will usually be respected and upheld. This will be even in circumstances where the appeal Court may have come to a different decision were it hearing the matter at first instance.[6] Of course, I mention these basic propositions for the benefit of the parties, not for the lawyers who readily know such things.
[6] House v R (1936) 55 CLR 499.
In a similar vein and only by way of example, albeit in the context of a final hearing and a parenting matter that involved a parent wishing to relocate, I note the recent comments of the Full Court in Blanding v Blanding.[7] Among a number of similar observations, in the plurality judgment, Ainslie-Wallace and Berman JJ (with Finn J concurring generally as well as adding her own similar comments) said, at [142]:[8]
This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[7] Blanding v Blanding (2017) 55 Fam LR 218.
[8] Similar comments are to be found also at [148]. Likewise Finn J at [35]. As already noted, the fons et origo of the difficulties of and in interim hearings under the current statutory regime is, of course, Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 especially at [81] and [82], noting in particular the comments at [82](d).
Procedural Matters
And so to the specifics of this particular interim parenting contest, in which one party in particular will not yield to the views of the Expert – which may, or may not, be for good reason. Put another way: the parenting dispute has been, and must be, seen against the back-drop of a seriously intense (tautology intended) procedural fray which has entwined the parties and the Court for quite some time – and doubtless at quite some further cost. One might reasonably blanch at what has happened and the cost of it thus far, and even more so at what might lie ahead in this regard.
The parenting matter proper could be measured figuratively in millimetres (e.g. one parent wants a particular time with the child, while the other seeks to limit it to some degree). I should also confirm that this is not a “no contact” case; it is, therefore, only about the structure and extent of the “time with” arrangements for the parents and their daughter.
Otherwise the matter could, and perhaps should, also be measured in terms of time and resources. On this latter scale, to the parties and to the Court, the resources expended thus far would seem to be extremely significant. To some, they would also likely be considered completely disproportionate to the issues in dispute.
Both parents of the recently turned four year old child, [X], contend that there should be an increase in the child’s time with her Father. The only question, therefore, is what that progression of time should look like.
Contrary to the detailed Report of Ms W, the Mother seeks that it progress in a rather slower order or time-frame than is proposed by the Expert. The Father supports the recommendations of the experienced Family Consultant. However, because matters of procedure have been raised in submissions and in correspondence with the Court, it is necessary to spend some little time at the outset addressing those issues.
First, the matter was originally listed for an Interim Hearing on 23rd March 2018. Alas, events overtook the time that was assumed would likely be available for the hearing in this matter. In short, the then available date and limited time available to hear the matter was overtaken by events outside the control of the parties and largely also by the Court. Further to this, the Court had then, and still has now, effectively no relevant time available, until many months hence, to re-allocate new hearing time.
Very briefly, the supervening events were:
a)The Interim Hearing in the present matter was originally listed immediately after lunch on the third day of an unfair dismissal trial. Such is not uncommon practice where the Court does not have available to it any proximate hearing time in the relatively near future. The Court simply tries to “fit matters in” where there might be some opportunity to do so. This was in the expectation that the listed Final Hearing might finish early. As it turned out, it did not. It was fiercely contested. Once it became evident that this long-scheduled wrongful dismissal hearing would occupy all of the days allocated to it, and many more besides, which has since proven to be correct, the parties were notified of the Court’s impossible situation. Indeed, the matter under the Fair Work Act 2009 has gone part-heard; and again because the Court is so stretched for reasonably available hearing dates, that matter is yet to have further hearing time allocated, and which will likely be not until 2019;
b)As a consequence of the long-listed “Fair Work hearing” continuing, it was not possible to squeeze in the Interim Hearing then proposed in this matter;
c)As it happened, at or around this same time, the Family Court quickly scheduled a Ceremonial Sitting for the change in position of Thackray J in that Court.
Each of these events, individually and cumulatively, meant that there was simply no time available to hear the interim aspect of the matter as then listed.
Secondly, because of there being no likelihood of any “court time” in the foreseeable future, which remains alarmingly the case still today, indeed, for the rest of the year in almost all respects - the only available option to assist the parties was to make Orders for the provision of written submissions. Such a procedure, of course, only adds to the ongoing burden of this Court, and to some extent that of the parties, because the only available time to decide such matters (from the Court’s perspective) is late nights or weekends, such are the incessant demands on the Court.
Thirdly, I note that there is no formal right, per se, to a hearing in Court. There is indeed a right, however, to ensure that procedural fairness is provided to litigants and obviously the parties here to have issues determined on the basis of argument or submissions put to the Court. To emphasise the point: it is required of the Court to ensure that there is proper opportunity for each party to put before the Court all arguments that are relevant to the controversy that is before it. There is ample authority of which I need only note a few examples precisely because the principles are so well known.
For example, a regular if now a tad old reference point are the comments of Tucker LJ, in Russell v Duke of Norfolk:[9]
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his [sic] case.
[9] Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.
In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, after referring to the comments of Tucker LJ, Kitto J added the following extra qualification (emphasis added):[10]
What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends on the circumstances.
[10] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504.
The comments of Tucker LJ and Kitto J have been cited approvingly many times by the High Court.[11]
[11] See for example, National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 312 (Gibbs CJ), 320 (Mason, Wilson and Dawson JJ).
Rather more succinctly, in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam, Gleeson CJ (dissenting in the result but not challenged regarding articulation of principle, and indeed cited in later High Court cases with approval) said, at [37]:[12]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[12] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1. See also the general discussion of “procedural fairness” in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] – [26]. At [44], the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said (emphasis added): “The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues in relation to the decision under review.” I suggest that in the current matter before the Court the Mother was given multiple opportunities to put submissions before the Court, having previously put her detailed evidence before the Court by way of Affidavits, filed 11th May 2017 and 31st January 2018.
Perhaps most recently, in Condon v Pompano Pty Ltd, the plurality of Hayne, Crennan, Kiefel and Bell JJ said, at [156] (internal citations omitted):[13]
[13] Condon v Pompano Pty Ltd (2013) 252 CLR 38.
Procedural fairness and the judicial process
The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed [in Lam] in the context of administrative decision-making but in terms which have more general and immediate application, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them
Moving then from statements of principle to the day-to-day practice of courts generally, from the High Court down, it is commonplace in these days of scarce public resources (i.e. available court time in particular) for matters to be dealt with “on the papers”, as the Court seeks to do here.
To take but one example: most special leave applications in the High Court are now done only “on the papers.” And it is the exception, rather than the rule, for such Applications to be given hearing time, which itself is limited to no more than 15 minutes per party. There is much to commend time limits on submissions. In any event, further to these matters, I note the following.
Section 3(2)(b) of the Federal Circuit Court of Australia Act provides that the Act is to enable this Court “to use streamlined procedures”. Rule 1.03 of this Court’s Rules provides similarly. Section 15 of this Court’s primary legislation provides power to the Court to make orders and to issue writs “as this Court thinks appropriate”. Section 42 of the same Act prescribes that the Court must ensure, inter alia, that proceedings are not protracted. While s.56 provides that the Court may give directions about the use of written submissions, including their length.
The sections of the Federal Circuit Court of Australia Act to which I have referred are congruent with similar provisions examined by the High Court in AON v ANU, which was raised with the parties in correspondence from the Court. They are equally so with the High Court’s more recent comments in Expense Reduction Analyst Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited.[14] At [56] and [57] the Court said:
[56] The evident intention and the expectation of the CPA [Civil Procedure Act] is that the Court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
[57] That purpose may require a more robust and proactive approach on the part of the courts. … The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.
[14] Expense Reduction Analyst Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 (“Expense Reduction Analysts”).
The sections of the Civil Procedure Act that were before the High Court have provisions similar to those to which I have referred in this Court’s primary and constitutive legislation.
I set out here the basic detail and history of recent correspondence between the Court and the parties in relation to the procedural conduct of the matter, including the provision of written submissions: Chambers sent the following email to the parties on 24th April 2018:
Dear Practitioners,
RE: JELBART & GANZER – CAC144/2015
I refer to the above matter and confirm that Chambers is in receipt of both the (a) additional submissions, and (b) e-mail communication from the parties in relation to the matters requested to be addressed (by way of e-mail sent from Chambers on 28 March 2018). These have been brought to the attention of HH.
For the information of practitioners and their clients, and for more abundant caution given an apparent sensitivity surrounding the conduct of the matter, HH requests that the following matters be noted:
1) Following the latest round of submissions, (a) is there any principal issue, other than the Father’s time with the child, to be determined, and (b) apart from what has been set out in submissions, is there any argument that would be put in open Court that has not been put in writing? Put another way, given the comprehensiveness of the written submissions filed, is there any other argument that could or might be put by anyone in relation to the Father’s time with the child, or any other issue? If there are any such issues (i) why have they not been provided earlier when the opportunity was given, and (ii) one further page of submissions on anything not previously canvassed may be provided within 7 days, being by close of business on 1 May 2018.
2) The matter was previously listed for interim hearing during the course of a two day wrongful dismissal Hearing. As things transpired, it became clear that the original estimate of that Hearing under the Fair Work Act was in fact going to take much longer, and would involve much greater amounts of evidence (documentary and oral), which in turn meant less prospect of any time available and further that the proposed interim hearing date and time in this matter could not proceed. As HH says regularly, there are only so many hours available every day.
3) Further, as it happens, HH is currently scheduled to be on leave. However, the incessant demands of practitioners and litigants is such that this period of leave has been very much shortened to only a few days and HH is working in Chambers on the equally demanding and constant stream of judgments – interim and final, in both family law and general federal law. Further, Judge Hughes is shortly to take extended leave, which means that the demands on the remaining resident Judges will increase. We mention these matters only to highlight, again, the relentless demands on the time and resources of the Court and the personal toll they take on each of the Judges. Sometimes, simply to try to accommodate as many matters as possible, in cases where the issues are relatively or quite limited, such as the present, and where there is no readily available court-time (such as occurred in the present matter), brief written submissions are requested so that, usually on weekends, such matters may be addressed. If every matter was determined only after oral submissions, the demands on the Court would only increase even more than is currently the case. And of course there would be even greater delay in securing court-time for oral hearing. In this respect, written submissions actually expedite the determination of matters of limited scope, such as the present litigation.
Chambers expects to hear from the parties by close of business on 1 May 2018.
Yours sincerely,
Chambers of Judge Neville
P: (Family Law)
P: (General Federal Law)
Federal Circuit Court of Australia
Nigel Bowen Commonwealth Law Courts Building
Cnr Childers Street & University Avenue
CANBERRA ACT 2600The Father’s legal representative sent the following email to Chambers on 27th April 2018:
Dear Associate,
RE: JELBART & GANZER – CAC144/2015
We refer to the email received from the Chambers of Judge Neville on 24 April 2018.
In response, we are instructed as follows: -
The principal issue that requires the Courts determination on an interim basis is the father’s time with the child. We submit no other issue requires determination noting no other Interim Order on any other principal issue is sought by either party;
The Father has taken opportunity to present submissions to the Court, as directed, addressing the principal issue. The Father does not seek to present any further argument in open Court or by further written submissions on the principal issue or any other issue;
We confirm the Father does not intend to submit further submissions and is content with the Court determining this matter on the material before it.
Kind regards
Holly Gunn
Senior Associate
In response, Chambers received the following email from Ms Simpson, the Respondent Mother’s Legal Representative, on 1st May 2018:
Dear Associate
RE: JELBART & GANZER PROCEEDINGS NUMBER: CAC 144 OF 2015
We refer to your email of 24 April 2018.
We are instructed to reply as follows:
1) The matters before the court relate to competing applications about the spend time arrangements for the child, within a complex factual matrix relating to allegations of family violence and apparent difficulties for the child in navigating certain developmental and situational changes. The mother does not assess those matters as “limited” given her continuing concerns about potential adverse consequences for the child.
2) The Mother has addressed Chambers previously about her request that the matter be dealt with in open court (and has filed an Application in a Case addressing this issue).
3) The deficiencies of written submissions in comparison to the process of advocacy, in a hearing in open court have also been addressed previously.
4) While the writer understands the demands upon the Registry and all those who work within it, certain criticisms are expressed, in the email of 24 April 2018, about the conduct of legal practitioners and parties. It is not clear if those criticisms are directed at the writer and or our client. The writer remains at a disadvantage and cannot properly seek to address those matters in communications of this nature to Chambers.
Yours faithfully
DOBINSON DAVEY CLIFFORD SIMPSON
Dianne Simpson
In response to the above emails, Chambers sent the following email on 7th May 2018:
Dear Practitioners,
RE: JELBART & GANZER – CAC144/2015
I refer to the above matter and to the Father’s Application in a Case filed on 13 November 2017 which is currently reserved pending judgment delivery (noting this was first reserved on 30 March 2018, which has since been amended based on the filing of submissions).
HH has reviewed the latest correspondence from both parties and requested that the following be raised.
The Court has advised on multiple occasions of the lack of Court time available to list the matter for Interim Hearing so as to facilitate oral submissions (with the next available time currently being approximately September 2018).
The Court has, on multiple occasions, invited the parties to make any submissions as they would in open Court, in writing, so as to facilitate an expeditious resolution of the interim dispute, given the limitations on the Court’s calendar raised above.
Those opportunities were as follows:
In accordance with Orders made on 14 November 2017, specifically Notation C, an outline of written submissions were filed by both parties.
On 23 March 2018 after vacating the Interim Hearing, the parties were directed to file an outline of their respective proposed procedural course.
On 28 March, the Court advised that the parties were at liberty to file a further 1 page of submissions covering matters not already detailed in prior submissions. At this time the Court also requested that by way of e-mail the parties advise the Court of other matters including the procedural course the matter should take after the interim dispute is determined, what documents are intended to be tendered on behalf of either party, and how the Mother’s Application in a Case filed on 28 March 2018 is consistent with the principles stated by the High Court in AON v ANU.
On 24 April 2018, the Court permitted a further 1 page of submissions to be filed in relation to matters that had not already been canvassed in previous submissions. The Father did not wish to file further submissions, and the Mother indicated that further submissions could not be properly put in writing, and requested they be heard in open Court.
HH has expressed that it is unclear what might be said orally which cannot be put in writing, and offers as an observation, that out of the hundreds of matters currently before the Court, there is rarely, if ever, such intractable opposition for argument being put by way of written submissions.
Please be advised that the matter has been listed for judgment delivery and the pronouncement of Orders on 1 June 2018 at 2:00pm in Canberra.
Yours sincerely,
Chambers of Judge Neville
P: (Family Law)
P: (General Federal Law)
Federal Circuit Court of Australia
Nigel Bowen Commonwealth Law Courts Building
Cnr Childers Street & University Avenue
CANBERRA ACT 2600Leaving to one side the reference by the Mother’s solicitors to “those who work in the Registry”, which of course my Chambers do not, it will be immediately apparent that, notwithstanding the multiple opportunities afforded to both parties (a) to put any matters in written submissions, and (b) to advise the Court (not the Registry or those who work in it) what could not be said in written submissions but only in open Court, there was never any detail from the Mother’s lawyers what it was that could only be said in open Court. The Court accordingly remains blind to what the evidentiary gap or advocacy impediment is, as suggested, but never articulated or clarified, by the Mother’s lawyer, despite having been given many opportunities to explain what such impediments were/are.
One of the reasons for noting this correspondence is to make as plain as possible, for all to see, the many and varied ways, given the Court’s limited hearing time, in which the Court has endeavoured to accommodate the need for a swifter resolution of the immediate but still discrete issue, which, nonetheless, drags on as each objection is made. For more abundant caution, and at the risk of repetition, I note the following summary of opportunities given to the parties to put relevant argument before the Court:
(a)Orders made on 14th November 2017, specifically notation (c), directed that an outline of written submissions be filed by both parties. This occurred;
(b)On 23rd March 2018, after vacating the Interim Hearing date, the parties were directed to file an outline of their respective proposed procedural course;
(c)On 28th March 2018, the Court advised that the parties were at liberty to file a further one page of submissions, covering matters not already detailed in prior submissions. At this time, the Court also requested that, by way of email, the parties advise the Court of (i) other matters, including the procedural course the matter should take after the interim dispute is determined, (ii) what documents were intended to be tendered on behalf of either party and (iii) how the Mother’s Application in a Case, filed 28th March 2018 (which sought that the Court allocate specific hearing time, as opposed to dealing with the matter by way of written submission) is consistent with the principle stated by the High Court in AON v ANU and Expense Reduction Analysts.
On 24th April 2018, the Court permitted a further one page of submissions to be filed in relation to matters that had not already been canvassed in previous submissions. The Father did not wish to file further submissions, while the Mother indicated by way of email dated 1st May 2018 that further submissions could not be properly put in writing and requested they be heard in open Court. Parties were asked, by email, what might be said orally that could not be put in writing. Nothing was identified.
In the circumstances outlined I confess to being somewhat perplexed (as well as grieved for the parties and the Court) as to what else the Court could do: there was no readily available time to deal with the matter in open Court. This still remains the case today. The parties were offered multiple opportunities to provide written submissions and to specify, among other things, what could only be said orally and not in written submissions. If procedural fairness is meant to be eminently practical, as Gleeson CJ suggested in Lam, and accepting that the Court’s lack of available hearing time is not the fault of the parties (or the Court), I wonder, rhetorically, what impediment or prejudice there was to either party in putting everything they wished to provide to the Court in written submissions. Presumably no one would be suggesting that the matter simply “mark time”, so to speak, until perhaps an opening of time became available later in the year? In my view, this would be unconscionable and of no assistance to the parties in resolving, or having the Court aid them in the resolution of, their discrete parenting contest about [X]’s time with her Father.
As a very general proposition, in my view, the best course for every parenting matter (for children as it is for parents) is for parties to extricate themselves from the court system at the earliest possible opportunity. Having the Court effectively act as the “third parent” is no parental “aid”; litigation only increases tension and stress for both parents and children; ultimately and respectfully, only the lawyers “win”.
I return now to the substantive issue regarding the “time with” arrangements between [X] and her Father, as opposed to the procedural discourse that has been waged with various levels of intensity for quite some months.
The Expert Report of Ms W
As noted earlier, everyone, including the Court, has the benefit of a comprehensive Report from Ms W, dated 26th July 2017. That report should be taken to be admitted into evidence as Exhibit A. Its impressive and extremely detailed Evaluation section and Recommendations were in the following terms (emphasis added):
Terms of Reference: The impact (if any) on the mother of the alleged family violence if that occurred and conversely, the impact (if any) on the father and/or the co-parenting relationship if that did not occur.
30) Family violence is broadly defined as physical, sexual or psychological harm caused by a current or former partner. Verbal abuse, threats and behaviour that is used to coerce or control a partner constitute domestic violence.
31) Three major types of family violence are identified (Kelly and Johnson, 2008) – coercive controlling violence, violent resistance and situational couple violence. Coercive controlling violence includes physical violence, threats, intimidation and attempts to control and isolate the other partner. Violent resistance violence refers to violence that is conducted in resistance to coercive controlling violence – to stop the partner violence or to exact retribution. Situational couple violence involves violence that occurs when couple conflict escalates. Causes of situational couple violence can include chronic conflict, poor communication and poor anger management skills etc.
32) The descriptions provided by Ms Ganzer of the alleged behaviour that she has experienced from Mr Jelbart would most likely constitute situational couple violence stemming from an inability to communicate and resolve disagreement and differences. Families experiencing different types of violence have been identified in the literature as requiring different parenting plans and interventions. For parents who experience situational couple violence interventions aimed at reducing conflict and resolving arguments before they escalate may be successful in reducing the violence.
33) Domestic violence can impact ongoing co-parenting relationships, parenting practices following separation and parent-child relationships after separation. Most of the research to date has focused on the impact on abused mothers. Studies have shown that mothers who have experienced abuse in relationships report greater levels of stress then do non-abused mothers. High levels of stress and insecurity can result in mothers who experience mental health issues such as depression, anxiety or post traumatic stress disorder (PTSD). These issues can affect a parent's ability to be emotionally available or involved with their children with negative consequences for the child.
34) Ms Ganzer said that she is fearful of Mr Jelbart and feels anxious about [X]’s safety with him, as well as feeling stressed about communicating with him directly or indirectly, regarding [X]’s progress and well-being. Ms Ganzer’s examples of the alleged hostility that she says she has encountered from the paternal grandmother and the ongoing reported opposition and intimidation that she alleges from the father exacerbate her reported history of relational difficulties with Mr Jelbart and exacerbate her fear of communicating with him.
35) Mr Jelbart denies violence in his relationship with Ms Ganzer or since separation. In the event that the violence did not occur between the couple his level of trust towards Ms Ganzer and the motivations that he assigns to her supporting and facilitating his relationship with [X] are likely to be damaged, resulting in him feeling suspicious and maligned and concerned about maintaining an ongoing and positive relationship with [X].
Terms of Reference: The impact (if any), on the child of the alleged family violence if that occurred.
36) Ms Ganzer described [X] being exposed to family violence perpetrated by the father from the time that she was an infant. During the last decade research has shown that children who have been exposed to domestic violence are at high risk of emotional and behavioural problems. Studies suggest differences in the effect according to the age of the child. For example, some studies have shown that infant and preschool aged children are more negatively affected by exposure to domestic violence then older children, because of their developmental vulnerability and developmental dependency on adult figures.
37) Studies have shown that young children who have been exposed to domestic violence are less able to regulate their emotions, which has implications in all areas of development. Preschool children who have been exposed to domestic violence have poorer verbal ability and this can extend to school-aged children and adolescents having difficulties around literacy. Exposure to domestic violence has also been associated with lower levels of social competence and more negative and less effective interactions with peers, resulting in more loneliness for these children, conflictual relationships with their peer group, difficulties with opposite sex relationships in adolescence and in adult life. These difficulties can lead to issues for a child’s mental health, which can continue into adulthood.
38) Ms Ganzer described [X] as exhibiting behaviour following spending time with her father that may be caused by insecurity stemming from her parents’ conflict and the alleged violence that she has been exposed to. For example, Ms Ganzer said that [X] had returned from spending time with her father angry, distressed, physically abusive of her mother and maternal grandmother and refusing to engage with them. She said that at this time [X] had distanced herself from them and curled into a fetal position. The maternal grandparents both describe [X] as exhibiting unsettled behaviour on her return from her father’s home.
Terms of Reference: Any conclusions the Court Expert may draw as to the father’s psychological functioning if the family violence, alleged by the mother, occurred (and noting the father's denials of such).
Whether, within the limits of psychometric testing and to the extent the Court Expert is able to comment, either parent is suffering psychological or personality disorder.
39) The descriptions provided by Ms Ganzer of Mr Jelbart’s alleged violent behaviour, during their relationship in the presence of [X] suggest that Mr Jelbart displayed some mental health disorder. However, Ms Ganzer’s descriptions are not consistent with the reports of Mr Jelbart’. Mr Jelbart’s presentation for the purpose of this assessment and in observation with his daughter do not accord with the alleged experience that Ms Ganzer has had during their relationship and since separation.
40) Mr Jelbart and Ms Ganzer completed the Personality Assessment Inventory (PAI), Morey 1991. The clinical interpretive report is confidential and it is noted on the report that it should not be released to the individuals. A summary of the results is provided below
41) The PAI is a multi-scale inventory of adult personality. It consists of 344 questions and is divided into four scales, which also include Subscales. The scales are:
· Clinical Scales – somatic complaints, anxiety, anxiety-related disorders, depression, mania, paranoia, schizophrenia, borderline features, antisocial features, alcohol problems and drug problems.
· Treatment Consideration Scales – aggression, suicidal ideation, stress, non-support and treatment rejection; and
· Interpersonal Scales – dominance and warmth.
· Validity Scales – inconsistency, infrequency, negative impression and positive impression;
42) Both Mr Jelbart and Ms Ganzer’s responses on the validity scale of positive impression management suggested defensiveness in their responses on the test. From their responses, each presents themselves in a favourable light, being free of the common shortcomings and problems that most people will admit and reluctant to recognise minor faults in themselves. These defensive tendencies suggest that the test results may underrepresent the extent and degree of difficulties reported and for this reason and the interpretive hypotheses of both Ms Ganzer and Mr Jelbart should be reviewed with caution.
43) Neither Mr Jelbart or Ms Ganzer exhibited any clinical features or psychopathology in their test results and their results indicated that they were entirely within the normal range.
44) From the test responses Mr Jelbart’s self –concept, indicated a stable and positive self-evaluation, which suggests that he is confident, optimistic, self-satisfied and purposeful in his approach to life. His interpersonal style is independent and he shows less concern about others views of him, than most people would exhibit. He is likely to be seen by others as aloof, reserved and unsympathetic. He reports a level of stress which is comparable to most normal adults and as having a good level of social supports. His support network and interpersonal style suggest that he would be resilient and adaptive in the face of most stressors.
45) Ms Ganzer’s self-concept involved both positive and negative self-evaluation. She showed some fluctuations in her self-esteem, which may be a function of her current circumstances. The report suggests that during stressful times she may be prone to be somewhat self-critical uncertain and indecisive. Her interpersonal style is characterised by being open and genuine. She is likely to be seen by others as more quiet and eager to please. Ms Ganzer’s responses indicate that her level of stress is comparable to that of normal adults and that she has a system of social supports that provides her with ongoing support that buffer her from stressors.
46) From the test results, both Ms Ganzer and Mr Jelbart both describe their individual management of anger as within the normal range and fairly well-controlled.
The Child and her Relationships
47) [X] presented as tall for her age and physically robust. She is a highly engaging child with an open and pleasant personality. She is demonstrating verbal capacity and appears intelligent, sociable and confident.
48) [X] has recently turned three years of age and is entering the preschool stage of development. The major issue of development in the pre-school stage is one of emotional self-regulation. It is a time when children develop some self-reliance with support from adult carers, self-management in day to day activities, they commence adaptation to an expanding social world and begin internalising rules and values. It is a time when children develop rapidly in the areas of cognition and verbal skills.
49) The four most significant adults in [X]'s life were interviewed for the purposes of this report. They each consider that [X] is developing at a normal rate in all areas.
50) Mr Jelbart and Ms Ganzer completed the Strengths and Difficulties Questionnaire (Goodman 1997 ,1998, 2010). This is a commonly used behavioural questionnaire for children from 2 years to 16 years of age. It includes 25 positive and negative “attribute questions” that is divided into 5 scales – emotional problems, conduct problems, hyperactivity/inattention, peer relationships and prosocial behaviour.
51) Responses provided by Mr Jelbart and Ms Ganzer on the questionnaire elucidated that they both considered that [X] was in the average range in each of the areas, specifically overall stress, emotional distress, behavioural difficulties, concentration difficulties and social difficulties. This would suggest that [X] is at low risk of any disorder, in the areas of emotional, behavioural, hyperactivity or concentration. This further references the parents view that [X] is developing normally.
52) The developmental and attachment literature suggest that during the pre-school stage of development children gain the developmental capacity to spend increasing periods of time away from their primary attachment relationship. This developing ability to reorganise relationships is dependent on a number of factors in the child, such as the capacity to regulate their own emotions, particularly at times of stress, to be able to understand in a less egocentric manner about relationships and the feelings thoughts and intentions of their adult's caregivers and a greater proficiency to verbally communicate their needs (Marvin et al 2016).
Terms of Reference: The nature of the relationship between the child and each of the parents
53) Ms Ganzer described [X] as “happy and confident”, “intelligent”, “she has a high vocabulary she is non-stop”, “she is sporty, fun and wicked. She can laugh and have a joke”. Ms Ganzer described herself as [X]’s primary attachment relationship. She said that their relationship together is “loving” “close” and “affectionate” and she provided examples of each of these. When Ms Ganzer talked about her daughter and the relationship they shared she conveyed warmth and sensitivity toward [X].
54) Ms Ganzer described herself as a parent to [X], “I'm a great mum. I took 2 years maternity leave. I always put her first, like most parents. I have a close circle of friends. I socialise her, we do activities together three or four times each week".
55) Ms Ganzer said that she is concerned to ensure [X]’s safety at all times. She is apprehensive that [X] can be difficult to deal with at times and on these occasions she is worried that Mr Jelbart will potentially lose his temper with [X]. She said that her fears are not alleviated by the lack of communication that the parents have with each other because she believes that Mr Jelbart would not make contact with her if there were difficulties regarding [X]’s care. Ms Ganzer said that Mr Jelbart, “Knows nothing about [X]. He doesn't know what she likes, her healthcare, he’s not interested”.
56) Mr Jelbart described [X] in similar terms to those of her mother. He said, "she is a happy healthy baby, she is quite smart, she is good at counting, her vocabulary increases every time I see her, she knows her colours, she got a vivid imagination, she is happy to play on her own, she can say when she is hungry and when she needs to go to the toilet; she is very pleasant, easy-going adaptable; she is independent, she likes being with other kids”. He said that she has two cousins and she adapts to time with them and engages with them positively. He said that she understands sharing and she is not aggressive or selfish. He said that she separates well from her mother when she spends time with him and that there has only been one occasion that she showed unhappiness to come with him. He said that on this occasion he and Ms Ganzer agreed that he would collect her the next day.
57) Mr Jelbart described his relationship with [X], "Despite everything it is a strong relationship. She knows who I am, I love her, I protect her. She stays close to me. She lets me know what she wants. She has my family she asks about them. I have a connection with her. There is an understanding between the two of us. She knows she is loved and comforted. We do things and I help her when she plays. I keep a watchful eye on her and I let her explore". Mr Jelbart said that [X]’s relationship with her mother is positive. He said, "She (Ms Ganzer) loves [X] and cares for her and has the support of her parents."
Terms of Reference: The emotional attachment of the child with each of the parents
58) [X] was observed individually with each of her parents. The first observation occurred with her father. It had been arranged that Mr Jelbart would collect [X] from her mother's residence and transport her to the psychologist’s office, where the observation was to occur. Ms Ganzer telephoned the psychologist that morning and said that [X] was upset and she wanted her mother to bring her to the observation. She agreed to notify Mr Jelbart about this change of plan.
59) [X] and her mother arrived at the office at the same time as Mr Jelbart arrived. The parents briefly acknowledged each other but did not make further communication. After a few minutes of [X] standing with her parents she went to play in the waiting area and her mother farewelled [X]. [X] remained engaged with the toys and appeared to transition easily to spending time with her father prior to the observation. [X] did not appear to show anxiety about her parents being together, as is most commonly observed in situations where children have experienced conflict and violence between their parents.
60) Initially [X] refused to finish playing with the toys that she was engaged in with her father and appealed to him to remain playing with her there. She sat on his lap and put her arms around his neck and buried her face unhappily in his shoulder. Mr Jelbart calmly and firmly told [X] that they were going to play in the other room. [X] appeared to quickly regain her composure and Mr Jelbart carried her into the observation room. [X] settled to play with her father.
61) Each of the parents participated in a structured observation with [X]. This involved free play with a box of toys, suitable for [X]’s age, the of introduction of a "stranger" (staff member), not known to [X] or her parents, two separations for [X] from her parent, one with the stranger still in the room and the other with [X] alone in the room, a story reading and a pack of the toys with her parent. This observation is structured to elicit the child's attachment system by putting the child under mild stress to observe the child's ability to rely on the parent as a predictably bigger stronger wiser and kinder figure to meet her needs.
62) On opening the box of toys with her father [X] became frightened by a toy dragon contained in the box. She ran behind Mr Jelbart's back and held on to him saying that it was scary and that she did not want to see it. Mr Jelbart acknowledged [X]’s concern and reassured her while moving the dragon to another part of the room, where [X] would not see it.
63) Mr Jelbart participated actively in [X]’s play. He followed her lead as to the toys they would play with and how the games would be organised, he entered into imaginative play with her, he scaffolded her play and on occasions, when necessary set limits. He appeared familiar with and comfortable to play with [X] and she seemed content and relaxed throughout the observation, while her father was present.
64) When the stranger came into the room Mr Jelbart greeted this person and introduced her to [X]. [X] ignored the stranger and continued to play happily with the toys, involving only her father. When Mr Jelbart was asked to leave the room [X] quickly engaged with the stranger and invited her to play. On her father's return [X] concentrated on playing with her father only and ignored the stranger. [X] told her father that she needed to go to the toilet and he immediately responded. On their return to the room [X] reminded him that she was frightened of the dragon and he reassured her that she was safe. She did not make reference to dragon again until the pack up at the end of the observation and insisted that her father pack up the dragon without her involvement, which he did.
65) When Mr Jelbart left [X] in the room on her own she played happily for a few minutes and then commenced calling out to her father for him to return to her. When the stranger came into the room [X] immediately engaged with her. She greeted her father happily and on his return resumed play with him. She cuddled up to him on lounge, when they commenced a book reading. She complied with his request to help him pack up the toys.
66) On the following day [X] arrived in the office with her mother and maternal grandfather for the purpose of the observation. [X] appeared relaxed and happy. She had brought a set of toys with her that she showed to the psychologist. [X] was initially reticent about accompanying her mother and the psychologist to the observation room, however Ms Ganzer was calm and insistent that [X] comply.
67) Immediately on entering the observation room and seeing the box of toys [X] advised her mother that she was frightened of the dragon in the box and went behind her mother's back, requesting her mother remove it. Ms Ganzer acknowledged [X]’s fear, reassured [X] that she was safe and said that she would place the dragon in a position that was far away from [X]. [X] and her mother played with the toys and Ms Ganzer organised [X]'s play while following [X]’s lead and joining into [X]’s imaginative play. At one point [X] hurt her finger and went to her mother for comfort. Ms Ganzer was quickly sympathetic and soothing and [X] resumed play.
68) When the stranger came into the room [X] responded in a similar manner as she had when she had been observed with her father, by ignoring the stranger, despite her mother's attempts to introduce [X]. When Ms Ganzer left the room [X] involved the stranger in her play and she appeared on the surface to be calm about her mother's absence. [X] announced with joy her greeting, when Ms Ganzer returned to the room.
69) When Ms Ganzer left [X] alone in the observation room [X] initially amused herself. After a short time, she commenced calling out to her mother and became insistent that her mother return. When the stranger came into the room [X] appeared disappointed that it was not her mother but resumed playing with the stranger. When Ms Ganzer returned [X] engaged with her mother and ignored the stranger.
70) [X] appeared to enjoy the book reading with her mother and was highly engaged in the story. At the conclusion of the reading [X] insisted that they leave the office and became whingey. Ms Ganzer was firm that they would complete pack up before leaving and [X] complied.
71) [X]’s observed relationship with both parents appeared positive. Both [X]’s parents were able to meet [X]’s needs during the assessment and she appeared to be a secure little girl who was confident about her parents availability at times of stress.
Projective / Representational Family Assessment
72) [X] participated in four story completions (MacArthur Story Stem Battery, 2003(MSSB)) using a doll family and other props. Children have an internal template about family life, the role of parents and children and their inter-relationships, which is based on the child’s own experiences. Research has shown that children make sense of everyday normal events for themselves and in their relationships with others in a manner that takes on a story form and has connection with the child’s, thoughts and feelings. The stories contained in the story battery present a dilemma that the child is asked to “resolve” in words and in play. This assessment tool helps to gain an understanding of the child’s emotional world and their representation of family relationships. Children who have healthy family relationships are able to rely on parents to be available to them to keep them safe and depend on them to regulate their emotions and resolve issues at times that they experience stress.
73) In addition, research on the MSSB has found that successful resolution of these stories by the child is related to their experience of solutions to difficulties and challenges in the context of their own relationships with significant available adults who are responsive to their needs.
74) [X] willingly and eagerly entered into the story completions. The family members in the stories were prescribed by the psychologist, according to the assessment protocol and comprised a mother, father and two female children. The two parent figures in [X]’s story both provided help, sensitive care and structure for the children and except in one story (when one of the child figures was most instigational in resolving the situation) the parent figures resolved the dilemma to a satisfactory conclusion for the child figures. For example, when one of the child figures spilt a jug of juice on the floor the father figure in [X]’s story cleaned up the juice and the family resumed drinking the juice together around the table; when the child figure heard a noise at night both parent figures in [X]’s story came into the child’s room and confidently reassured the child that there was nothing to be concerned about; when the child figure fell over and hurt her arm during a picnic both parents in [X]’s story reassured the child and the family resumed their picnic; and when the parent figures had an argument about lost keys the child figure in [X]’s story found the keys and all family members together helped retrieve the keys..
75) [X]’s narrative suggested that she has experienced her parents as being available to her to provide comfort, structure and security. Research on the MSSB has shown that children who are able to successfully resolve these stories are likely to have secure relationships with parents/caregivers because they have experienced these adults to be emotionally accessible, nurturing, sensitive and predictably available to address and resolve everyday issues that they experience.
76) Attachment is the affectionate bond between a child and a parent/s or adult caregiver/s that provides a child with safety and security so they can develop normally and experience the world in a safe and secure context. From observation of [X] with each of her parents during this assessment it appeared that [X] has a positive relationship with both her parents and was able to rely on them to meet her needs, particularly at times of stress and distress. In addition, [X] provided a narrative in the story stems that portrayed an experience of parents providing understanding, support and protection to their children. This would indicate that [X] has experienced this in her relationship with her parents and would indicate an emotional attachment to both her parents.
77) It was evident that during the observation of [X] with each of her parents she was able to use “the stranger” (an adult figure) as a safe and protective presence, at the times when neither of her parents were available to her. This is likely to suggest that [X] has experienced adults to be available and reliable to help her at times when she requires it. This is a further indication that she has experienced secure care from her adult carers.
Terms of Reference: The attitude of the parents to the child and to the responsibilities of parenthood demonstrated by each of the parents, including but not limited to their attitudes to each other and to encouraging and facilitating time and the child's relationship with the other party.
The capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs, and in particular with reference to their attitudes to an understanding of the child's relationship with other significant people in their life.
78) Each of [X]'s parents considers that the other parent is disrespectful of their role and relationship with [X] and they each believe that the other parent is deliberately difficult and at times obstructive around arrangements for [X] and communication regarding [X]. Mr Jelbart views Ms Ganzer and her family to be imperious and overbearing regarding his relationship with [X]. He said that the requirements of him to provide detailed plans of the time he spends with [X] reflected Ms Ganzer’s need to control him rather than due to any genuine concerns that she had for [X]’s safety and well-being in his care. He views Ms Ganzer and her family's interactions with him in the presence of [X] to be detrimental to [X]’s emotional and psychological stability and ultimately to her relationship with him and potentially with her mother. Mr Jelbart said that he has been reasonable, flexible and patient regarding his time with [X].
79) Ms Ganzer provides a negative view of Mr Jelbart based on her reported experience of her relationship with him, that was allegedly characterised by violence. She considers that he presents a risk to [X]’s emotional, psychological and physical safety. She finds communication with Mr Jelbart to be frightening and arduous. She denies any motivation to denigrate Mr Jelbart to [X]. She considers that she has facilitated [X]'s relationship with her father.
80) The major parenting tasks during the pre-school years that support the normal development of a child are identified in the Minnesota Longitudinal Study (Sroufe et al, 2005):
· Regulation of the child’s arousal
· Developmentally modulated stimulation of the child
· Provision of secure base and safe haven for the child
· Guidance, setting limits and structuring the child’s exploration
· Maintaining parent/child boundaries
· Appropriate socialisation of the child
· Supporting mastery and achievement of the child
· Supporting the child’s contacts with the broader social world
· Accepting the child’s growing independence.
81) From observation of [X] with each of her parents, the picture of family life that [X] provided during the story stem play, the accounts and questionnaire completion provided by each of her parents regarding [X]’s current progress and development and from [X]'s presentation, during the assessment for this report, [X] is developing appropriately. She does not present as a child who is emotionally or psychologically insecure or has any behavioural issues. This would suggest that she has experienced sensitive, predictable and available care. Ms Ganzer, as [X]’s primary attachment relationship, with the support of her parents has been predominantly responsible for providing [X] with her emotional, psychological, intellectual, social and physical needs.
82) Mr Jelbart has had a limited relationship with [X] to date. From observation of Mr Jelbart with [X] and interview of him regarding his relationship with [X] he exhibits behaviours towards [X] that suggest an ability to be emotionally available to her, to protect her and to provide her with experiences to learn, to play and imagine, to set limits and provide her with structure and routine (Zeanah et al 1997). [X]’s observed relationship with him suggests that she has an experience of her father providing her with secure care. [X] exhibited a positive relationship with her father during the assessment for this report.
83) The research has shown that children have better outcomes in the short and long-term when both parents are positively involved in their life. The literature suggests that having two parents who have a meaningful relationship with their child gives the child additional support, as well as affording them broader experiences. (Grossman et al, 2012).
Evaluation
Terms of Reference: Any risk or other issues considered relevant by the Expert to the preparation of this report.
84) Both Mr Jelbart and Ms Ganzer acknowledge and accept that their relationship with each other should improve so that they can effectively communicate to parent [X] and provide for her needs. Their current relationship is tense and at times conflictual. Ms Ganzer reports that it is frequently hostile. Parental conflict has been repeatedly identified in the research as the most damaging aspect of parental separation for children (Mahrer et al 2016, Kushner 2009, Fabricus and Luecken 2007, McIntosh 2003, Johnston 1994). If conflict between parents continues unabated children suffer adversely because it is confusing and destabilising for children, particularly young children to have their carers, who they rely on for all their needs, including safety and security exhibiting mistrust, dislike and animosity towards each other.
85) Currently Mr Jelbart and Ms Ganzer communicate by email regarding [X] and they both prefer that this form of communication continue. Communicating only by email is limiting, open to misunderstandings and denies a level of flexibility, particularly in arrangements for young children. In light of Ms Ganzer mistrust of Mr Jelbart and concerns around her safety when associating with him (whether the alleged violence did or did not occur) coupled with the impact of domestic violence on parenting capacity, (that were highlighted earlier in this report), steps are required to address communication between the couple, while also providing the parents with safe parameters around their communication with each other. Work in the area of situational couple violence that promote positive adjustment for children (Jaffe et al (2008, 2003(a) and 2003(b)) recommend parenting plans that include interventions that help both parents to resolve conflict and focus on their child’s needs. Arrangements that equalise the power between the parents; provide enforceable boundaries to their relationship and prescribe means of communication that minimise the likelihood for disagreement are important features of parenting
86) During the interviews with the parents for this report the Circle of Security (Cooper, Powell, Hoffman, Marvin 2007) intervention was discussed as a potential means by which Mr Jelbart and Ms Ganzer might be able to focus on [X]’s needs and the importance of her individual relationships with each of them and provide a common language in which they may be able to communicate about promoting [X]’s wellbeing.
Terms of Reference: The psychological, emotional and/or physical consequences, if any, of the implementation of each of the parents’ applications:
a) on the child;
b) on the parents.
The likely effect (if any) of any change in the child circumstances, including the likely effect of separation from either of her parents.
87) [X] is at a developmental age where she is able to more securely move between her parents’ care. In the next 12 months she will develop further and usually by the time a child reaches the age of four years of age the developmental research indicates that children are mature enough to be able to regulate their emotions, have some understanding of relationships and be able to verbally communicate their basic needs. This is a developmental period when children can cope with separation from the primary attachment figure for increasingly greater periods of time. Ultimately a meaningful relationship for a child is predicated on the child spending time with each of their parents and experiencing care in a variety of contexts with each parent.
88) In the event that [X] continues to only spend limited weekend time with her father she will not be afforded an opportunity to establish a meaningful relationship with him. Increasing her time with her father should occur in accordance with her age and in light of the conflictual relationship between the parents, their mistrust, their poor communication and Ms Ganzer’s concerns regarding her safety when communicating with Mr Jelbart.
89) However, considering the present level of tension, dislike and suspicion between Mr Jelbart and Ms Ganzer changes in arrangements for [X] should proceed gradually and with clear parameters to avoid conflict between the parents and to minimise [X]’s exposure to parental conflict.
90) To ultimately provide [X] with a meaningful relationship with both parents will require Mr Jelbart and Ms Ganzer to establish a safe, appropriate and effective level of communication between each other. This will require them to acknowledge each other’s role and contributions to childrearing; recognise and accept the differences in their parenting; resolve conflict based on what [X] needs; and create an approach to parenting [X] in accordance her well-being. This is a big task and would require Mr Jelbart and Ms Ganzer to show commitment and proper motivation. It is likely that for them to address these factors they will require assistance from a professional service or individual, at least in the short-term.
Recommendations
Terms of Reference: Recommendations as to the future parenting arrangements for the child (if possible), including recommendations about the time that the child will spend with the other party.
91) That the parents share the parental responsibility of [X].
92) That [X] live with her mother.
93) That [X] commence spending gradually increasing time with her father. That this start with her spending an afternoon with him each week for a few hours, in addition to her current fortnightly weekend time with him and after approximately 3 months of this additional time, that [X]’s time with her father increase during the weekends so that prior to her 4th birthday she is spending a day with him each alternate Saturday and Sunday.
94) From approximately 2018, when [X] is 4 years of age she commence spending overnight time with her father, at his home each second weekend, as well as continuing her time with him during the week.
95) From approximately 2019, when [X] is 5 years of age she commence spending an additional night (2 nights in total) with her father during each alternate weekend, as well as continuing her time with him during the week.
96) From 2020, when [X] is at school that she commence spending an additional night (3 nights in total) with her father each alternate weekend, as well as continuing her time with him during the week.
97) That the parents negotiate times during school holidays that [X] spend with each of her parents, depending on their availability to take leave from work to spend time with her. That blocks of holiday time for [X] with her father gradually increase to an arrangement where she can potentially spend half of school holidays with him.
98) That Mr Jelbart make contact with Ms Ganzer in a manner agreed between the parents at times when [X] is in his care if [X] is distressed, unsettled or he has any concerns about her wellbeing while she is with him.
99) That the parents consider how they will exchange [X] at the commencement and conclusion of her time with her father. If Ms Ganzer feels secure to do so and if it is logistically practical it would most likely be most comfortable for [X] if Ms Ganzer transported [X] to her father’s home and that he returned her to the mother’s home at the conclusion of that time.
100) That if possible all exchanges of [X] and communications between [X] occur between her parents, without other people being involved.
101) That initially the parents communicate any relevant information about [X] pertaining to her health and wellbeing by email.
102) That the parents consider how they will communicate with each other in the long-term regarding [X]. They also consider what steps they believe would be helpful to commence this process. The Circle of Security Intervention may assist in their communication with each other regarding [X]. Services such as Marymead Child and Family Centre, and private psychologists such as [A] Psychology, [C] Psychology and [B] Psychology may be able to assist.
I simply observe – again – how considered, measured and cautious the Family Consultant was in both her assessments of the parties and [X] and equally so in her recommendations. Put another way with a slightly different emphasis, it is quite an unusual circumstance where the Court has the benefit of such a detailed and exhaustive Report for the purposes of making parenting Orders on an interim basis.
I should also note that, while certain other parts of the Report could equally have been highlighted, I have not done so, especially in matters or areas where I do not understand there to be much dispute, such as that the Mother is the child’s primary carer, the many accusations (primarily of the Mother against the Father) regarding domestic violence during the short and troubled relationship, and the general, ongoing discord between the parties. All of those matters have certainly and clearly been noted. The Family Consultant obviously recorded them and made the recommendations that she did in the light of the evidence available to her from all sides. It was in the light of that evidence, and her obvious Expertise, which led her to make the cautious recommendations that she did for [X]’s gradual progression in spending time with her Father.
Applicant Father’s Submissions
The solicitors for the Father filed Written Submissions on 16th March 2018, which were as follows:
1) It is agreed that the parties share parental responsibility, and that the child should continue to spend unsupervised time with her Father on both weekends and weekdays.
It is agreed that the child has spent unsupervised time with her Father since she was less than one year of age, and that she is currently spending time with the Father in accordance with the interim Orders of 22 August 2017.
2) The primary issue in dispute is whether the child’s weekend time with her Father should increase or remain as it currently stands. The Father seeks Orders providing for a gradually staged increase in the child’s time with him to include overnight time.
3) Whilst untested, the Court does have the benefit of a full Family Report from Ms W dated 26 July 2017. This Report clearly recommends, inter alia, that the child’s time with her Father should immediately increase to four visits per fortnight, building gradually to provide for the commencement of overnight time when she turns four in May 2018 [93].
4) Ms W comments on the benefit in both the long and short term of children having a meaningful relationship with both parents [83], and states that if [X] were to continue to spend limited weekend time with her father she would not be afforded an opportunity to establish a meaningful relationship with him [88]. At present, the child’s relationship with her Father is limited to three short visits totalling 10 hours per fortnight, representing an increase of 2 hours since the child was less than one year of age [M33]. This arrangement does not allow for a meaningful relationship between the child and her Father.
5) While the Mother makes various allegations that the Father represents a risk to the child’s safety, she continues to consent to unsupervised time. The Father denies that he is a risk to the child. Ms W reports that the child’s narrative suggested that “she has experienced her parents as being available to her to provide comfort, structure and security,”[75] and that it appeared that the child “was able to rely on [her parents] to meet her needs, particularly in times of stress and distress.”[76]. Furthermore, Ms W states that the Mother’s descriptions of the Father “do not accord”[39] with his presentation at the assessment or observations of him with the child.
6) It is the Father’s evidence that the child transitions easily to him from the Mother and she is comfortable in his care[F6-8]. This is reflected in Ms W’s observations of the child “transitioning easily to spending time with her Father”[59], and seeming “content and relaxed”[63] with her Father.
7) The Father accepts that the Mother and child have a positive relationship[57]. It is his evidence that the child appears to feel safe and secure with him[F6-8]. Ms W stated that the child exhibited a “positive relationship”[82] with her Father during the assessment, and that her behaviour indicated an “emotional attachment to both her parents” [77]. Ms W describes [X] as a “secure little girl who was confident about her parents’ availability at times of stress”[71].
8) There is no suggestion by the Mother that the Father has not taken every opportunity to spend time with the child. The Father provides evidence of recent attempts to engage with the Mother about the child’s welfare and development [F15-16].
9) Ms W comments that at four, children are in a developmental period to cope with separation from the primary attachment figure for longer periods [87]. Both parents reported that the child was developing normally, and Ms W commented that she did not present as emotionally or psychologically insecure or having any behavioural issues [81].
10) The Mother’s evidence is that she is still breastfeeding the child at night, but that she chooses to “resist” [M29] doing so in certain circumstances. The Mother also gives evidence that she breastfed the child in front of Ms W[M15], but there is no suggestion in the Report that breastfeeding should prevent overnight time commencing for a four year old.
11) The Father has demonstrated that he is child focused, being agreeable to gradually increasing his time with the child in accordance with her developmental needs. The Father has complied with the recommendation to enrol in the Circle of Security parenting course at the earliest available opportunity [F13]. Ms W noted both parents were “able to meet [X]’s needs during the assessment”[71].
12) The Father has responded to the Mother’s historical allegations of family violence. It is his evidence that any verbal arguments between the parties were mutual. Ms W states that the Mother’s descriptions of the Father “do not accord”[39] with his presentation at the assessment or observations of him with the child. She also notes that the child “did not appear to show anxiety about her parents being together, as is most commonly observed in situations where children have experienced conflict and violence between their parents.”[59].
Following the Mother’s Application in a Case, filed 28th March 2018, the parties were granted leave to each provide a further page of Submissions. The further Submissions for the Father, filed 10th April 2018, were as follows:
1) The mother seeks the listing of the competing interim applications (and her Application in a Case provided to the court on 28 March 2018) and the opportunity for a hearing in open court.
2) Submissions will be made, (as directed) about AON Risk Services PIL v ANU (2009) 239 CLR 175 ("AON") and will be focused on the paramountcy of "justice as between the parties" in addition to case management or court resources. AON deals primarily with the Court's legitimate right to insistence upon proper case management where such an approach does not detract from "justice as between the parties". Here, the mother is not in default of the Court's orders and directions nor is she seeking an indulgence from the Court. In those circumstances her expectation that the Court will deal with her application in Court is in accordance with case management guidelines.
3) An interim hearing was previously contemplated and directions about this made (Orders of 14 November 2017).
4) The mother expected that the Court would hear and determine her application in a hearing at a date and time set by the Court. The Court was not available at the assigned time and thereafter sought to dispense with the oral hearing. The mother legitimately resists the vacation of the hearing and seeks, through her legal representatives, to be heard. No principle of case management would deny a party that right.
5) Justice should be done and be seen to be done. Each party should have the opportunity to tender documents (and where appropriate object to the tender of documents), make oral submissions and engage with the Bench (including about possible orders different to those sought by each party) and engage with the oral submissions made by their opponent.
6) The process towards an adjudicated outcome is important in affording each party procedural fairness, along with the fundamental importance of the administration of justice in open court. While limits to the principle may apply, these may be directed to securing the proper administration of justice or otherwise being in the public interest1•
7) The mother seeks Orders as set out in her Application in a Case filed 27 March 2018 and seeks a hearing as previously set down (but vacated on the Court's motion).
Respondent Mother’s Submissions
The solicitors for the Mother filed Written Submissions on 19th March 2018; they were as follows:
1) The dispute before the court centres on how to balance the two primary considerations - how to support the child’s developing relationship with her father while assessing and balancing risk to the child (family violence and issues of parenting skill and capacity of the father). There is also the risk created to the mother’s capacity to parent the child (if adverse arrangements are imposed).
2) The mother proposes to continue a necessarily cautious and child focussed approach, informed by the evidence of serious family violence (particularised in the May 2017 affidavit and in part corroborated by Mr Ganzer, but denied or minimised by the father) and continuing concerns about parental incapacity.
3) The mother’s fear and distress about these experiences during the relationship was acknowledged by Ms W (Report 26 July 2017, paragraph 18) and her experiences of the father’s “rage” at handovers was also discussed (Report paragraph 21).
4) Ms W engages in some discussion of the impact of family violence (paragraphs 32, 33), the characterisation of the violence alleged by the mother and acknowledges (paragraph 34) the mother is fearful.
5) In the event the mother’s reports of her experiences of family violence are established at a final hearing, the father’s denials and minimisation of such increases the risk he presents to the child. Ms W’s conclusions about the family violence are premature and may be unsound in the event the court makes certain findings at the trial.
6) Ms W’s report supports the need to ensure the time arrangements with the child are progressed in a way which acknowledges the concerns of the mother and the limited parenting relationship between the parties (including paragraph 89).
7) The recommendations made in July 2017 cannot anticipate the actual reality of this child’s circumstances, which indicate it would be adverse to her to attempt to progress matters in the way sought by the father. The father fails to address the evidence by the mother about the child’s distress and difficulty in her relationship with the father, and her complex needs relating to sleep, and her routine generally (which continues to include breastfeeding).
8) Similarly, there is no allowance made by the father for the significant change presently being experienced by the child in her commencement of formal schooling and being out of her home and routine, to attend such.
9) The fact the child responded comfortably with the father in observations with the Ms W is not surprising, and reflects the significant work of the mother to foster and support that relationship, despite her own ambivalence. The child is described by all as happy, intelligent, and inquisitive and her positive engagement with the father is a credit to the mother, in these circumstances.
10) The father will not engage in proper communication with the mother about the child, which undermines the mother’s confidence in the father’s actual knowledge about the child (he describes her as a baby to Ms W (56)) and his interest, more broadly, in acquiring knowledge to assist him to care for the child.
11) The child reports some disconnect between what she needs and what the father provides (eg taking her own toys as his are “baby toys”, taking a torch as his house is “dark”, G aff para 9).
12) The father seeks a significant change to the spend time arrangement. This is made where there is no evidence the father has ever sought any information from the mother about the child’s needs, routines or progress. His engagement with the mother is perfunctory and he appears disinterested in being informed about the child’s development or needs. His application is made in a vacuum of interest or curiosity – which creates real concern about his willingness to engage with the mother if faced with the child’s distress in his care.
13) There is silence by the father in response to the mother providing him with information about the child and no follow up inquiry even relating to health matters (save on one occasion) and or matters relating to [X]’s routine (for example, G aff 20, 40 and following, G aff 14, 15).
14) The father proceeds in the face of evidence of the child’s continuing reluctance to spend time with him and her significant distress and withdrawal upon her return to her mother (including G aff 18 and G aff 27). The court will be concerned that something is not working for this child. There is also the troubling “event” (G para 27.4 and following and G para 16) and the lingering consequences for the child.
15) The child’s reliance upon the mother is clear (and developmentally expected and reflecting her care experiences). There is significant evidence of complex sleep and comfort frameworks for [X] that will not accommodate the father’s application. The father offers no concession to these realities.
16) The child has commenced formal education and has 17 hours of engagement outside of her usual routine to contend with (G aff 21 and following) and not unusually, this is a time of adjustment for [X]. Caution ought to be exercised before imposing upon the child (and her primary carer who will have to contend with the consequences) another significant change, which all of the evidence suggests she is not yet positioned to manage.
17) The mother’s Orders will allow the child to become accustomed to time with the father at the end of the day, as a foundation to trialling overnight time in the future. The point at which [X] will be able to commence that trial is not yet understood and exploration of supports to assist in that process would best occur in a mediation environment. The mother will seek orders to that effect.
The Mother filed further Submissions on 6th April 2018, relating to her Application in a Case, filed 28th March 2018. Those Submissions were as follows:
1) The mother seeks the listing of the competing interim applications (and her Application in a Case provided to the court on 28 March 2018) and the opportunity for a hearing in open court.
2) Submissions will be made, (as directed) about AON Risk Services PIL v ANU (2009) 239 CLR 175 ("AON") and will be focused on the paramountcy of "justice as between the parties" in addition to case management or court resources. AON deals primarily with the Court's legitimate right to insistence upon proper case management where such an approach does not detract from "justice as between the parties". Here, the mother is not in default of the Court's orders and directions nor is she seeking an indulgence from the Court. In those circumstances her expectation that the Court will deal with her application in Court is in accordance with case management guidelines.
3) An interim hearing was previously contemplated and directions about this made (Orders of 14 November 2017).
4) The mother expected that the Court would hear and determine her application in a hearing at a date and time set by the Court. The Court was not available at the assigned time and thereafter sought to dispense with the oral hearing. The mother legitimately resists the vacation of the hearing and seeks, through her legal representatives, to be heard. No principle of case management would deny a party that right.
5) Justice should be done and be seen to be done. Each party should have the opportunity to tender documents (and where appropriate object to the tender of documents), make oral submissions and engage with the Bench (including about possible orders different to those sought by each party) and engage with the oral submissions made by their opponent.
6) The process towards an adjudicated outcome is important in affording each party procedural fairness, along with the fundamental importance of the administration of justice in open court. While limits to the principle may apply, these may be directed to securing the proper administration of justice or otherwise being in the public interest1•
7) The mother seeks Orders as set out in her Application in a Case filed 27 March 2018 and seeks a hearing as previously set down (but vacated on the Court's motion).
Consideration and Disposition
The Court is in the usual, untenable position of having significantly varied and opposing accounts of (a) events (“he said – she said”) and (b) what each party sees as appropriate Orders that are in the child’s best interests. In such circumstances, as simply a preliminary observation, I suggest that, although not formally tested, the comments and observations of the Expert Family Consultant, will necessarily, and should, carry significant weight. Moreover, it was not only “observations” of the Family Consultant that were recorded; she also conducted particular stress tests in relation to the child and recorded the consequences of them. In my view, such tests only add to the significance and utility of the Expert’s assessment and recommendations.
That said, given the unfortunately glacial pace with which this matter has progressed, it could be asked (rhetorically and otherwise) why the parties actually bothered to pay for a Report from such an acknowledged Expert now almost 12 months ago, given how strongly resisted its evaluations and recommendations are, at least by the Mother.
Again by way of observation only: given that this is not a “no contact case”, ultimately, at some stage, [X] will end up spending time, and likely increasing time, with her Father. The parties, and perhaps the Mother most especially, simply have to work out whether they plan on resolving parenting matters with or without the expense of lawyers and the interference of the Court. Accepting that many people require professional assistance to resolve parenting and other matters following the break-down of a relationship, there are other, much less costly, exhausting and debilitating ways of resolving parenting disputes.
It is apposite here to set out some basic jurisprudential reference points regarding the conduct of interim proceedings, attenuated as they are here for the reasons already outlined. In doing so, it might also be said that the detailed terms of reference addressed by the Family Consultant, which I accept and essentially adopt, almost make the Court’s need to address the issues again, via the dreaded legislative scaffold or pathway, somewhat otiose; but such is the nature of the beast of interim proceedings. Such things are even more fraught in cases where the contest is heightened, as it is here, and some minute aspects are examined, while others are ignored. It becomes less a forensic examination, albeit necessarily attenuated, but more a litigious game of chess. It could even be likened to “Wizard’s Chess” as played in the surreal world of Harry Potter, where various pieces are expended along the way in an attempt to achieve victory at almost any cost.
It should also be noted that, somewhat curiously, in none of the Submissions is there a reference to any relevant part of the “statutory pathway.”
All of the following cases outline, among other things by reference to earlier Full Court authority, the central difficulties in the conduct and determination of parenting disputes on an interim basis.
For example, in Redmond & Redmond, the Full Court (Ryan, Murphy & Kent JJ) said, at [21] and [22] (emphasis added):[15]
[21] Before dealing specifically with each of these grounds we observe that permeating several of them as they were argued by the father – both in his summary of argument and his oral argument on the appeal (particularly grounds 1, 2, 4 and 7) – there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.
[22] This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent Expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.
[15] Redmond & Redmond [2014] FamCAFC 155. See also the detailed comments of Murphy J (sitting as the Full Court) in Jopson & Lilwall [2016] FamCAFC 262 at [30] – [35]. Earlier observations by the Full Court in Banks & Banks (2015) FLC 93-637 at [23] – [24] and in Vanzin & Vanzin [2014] FamCAFC 245 at [17] – [22] are also important to recall. For completeness, I should also note that the robust observations of the Full Court (Kay, Coleman and Warnick JJ), albeit some time ago and in a different statutory context, in VR v RR [2002] FamCA 230 remain of some import.
Against these important judicial observations, I note the following procedural and substantive matters.
The very short but non-exhaustive points made by the Mother, albeit respectfully, in my view, with a hint or degree of defensiveness, are that because of the following matters, the proposals of the Expert, Ms W, should be either ignored, discounted or delayed rather significantly. The non-exhaustive list of concerns of the Mother, in addition to what is in the material produced under subpoenæ, are:
a)[X]’s “busy lifestyle”, recalling that she has only recently turned four. Doubtless the parents, or at least one of them perhaps, would presumably almost quiver or quake with excitement at the thought of how busy she might be in her later teenage years! Notably, she is now attending “formal education” as it is put in the Submissions. Be that as it may, the “busy lifestyle of the child” would seem to take precedence over the child’s relationship and time with the Father. I do not understand that the “busy lifestyle” of a young child to be a “consideration” under Part VII of the Act, and certainly not something that should take precedence over the importance of a meaningful relationship with the Father, accepting any and all other qualifications;
b)The difficulties in communication between the parties (which the Family Consultant noted more than once);
c)The asserted “complex needs relating to sleep” at paragraph 7 of the Submissions. It is stated at paragraph 15 of the Mother’s submissions, respectfully with mellifluous, understated, almost breathless ease, that there is:
Significant evidence of complex sleep and comfort frameworks for [X] that will not accommodate the Father’s application.
Unfortunately, such statements shroud such detail, significance and import as there might or should be. Doubtless it is part of my many failings to admit that I do not understand, or as fully as I would wish, what is actually meant by this submission, including what is comprehended by the reference to [X]’s “comfort frameworks” which are somehow unable to “accommodate the Father’s Application”;
d)Rather curiously, the Mother submits at paragraph 9 that, in effect, little or no weight should be put on the observations of the child with the Father. If followed to its logical conclusion, the same comment could surely apply to any positive comments of the child with the Mother, which I assume the Mother would not wish the Court to take. And as noted earlier, there is no reference to the stress testing of the child, which is also either discounted or ignored. The stress testing of the child should have been addressed but it was not.
Next, it was submitted that the child has 17 hours of “engagement outside her usual routine” – doubtless adding to her “busy lifestyle”. Curiously, [X]’s “busy lifestyle” was not addressed as a potentially contributing factor in the child’s levels of discombobulation and whatever else might be contributing to her distress, as perceived by her Mother. In any event, the implication here seems to be that the Father’s time should come a long and distinct second place to these extensive hours of extracurricular engagement. Such might be said not to be an attitude that is likely to facilitate the child’s time with the Father and, therefore, if a Court took such a view at a final hearing, it might well be regarded as not quite so child focussed as one might hope (or expect). Of course, I do not hold any such view at the present and reserve all such matters to a Final Hearing.
The Mother also submits that, on the basis of the allegations of violence perpetrated against her by the Father, plus the Father’s alleged denials and minimisation of these, somehow puts the child at risk, even though there are no allegations of the child being subject to any violence by the Father. The Mother alleges that the child witnessed some of the alleged violence directed at the Mother. For my part, the causal connection between the alleged violence between the parents and the alleged increased risk to the child is not immediately obvious, especially in the light of the Expert Report and the comments therein including the Family Consultant’s consideration of the allegations of family violence. Put another way, and without in any way seeking to lessen or to have less than due regard to such allegations (contrary to s.60CC(2A) of the Act), noting again that the Expert regularly referred to the allegations of family violence. In my view, she properly had regard to them and still came to the considered view, especially in the light of (inter alia) the many comments and observations she made about [X] with each of the parents, which provided for the regime of gradual increase in the child’s time with her Father.
By my general observation, the Mother’s position seems, I stress the word “seems”, to be an approach of the most extreme caution, but which seems also to have ignored the Expert advice from Ms W. For example, while not actively seeking to thwart the child’s time with her Father, the ultra-cautious approach she suggests will certainly do little any time soon to foster the child’s relationship with the Father.
What is of genuine concern to the Court is that the Family Report has been available to the parties and their lawyers since late July 2017 and we are now in early June 2018. Despite this fact, the Submissions, provided many months later, seem to have taken, at least on behalf of the Mother, very little cognisance of the comments and recommendations of Ms W.
The response of the Mother is still to promote extreme caution in relation to the further exploration of issues. This is in circumstances where, when the child was 10 months or so younger than she is today, the Family Consultant made clear recommendations for a staged increase in the Father’s time with the child. That has not happened, and the Mother’s Submissions seem predicated upon the child not having grown in confidence at all, or anything else, in the last 10 months or so. This is completely contrary to the observations and formal assessments of Ms W.
Very unfortunately, it is almost as if the Expert Report of July 2017 did not exist. Indeed, viewed in one light, it is as if someone has made a decision to ignore it, hoping that it will just go away. Those resources now seem to have been completely wasted.
I readily accept the need for caution in making Orders in relation to young children and having due regard to the prescriptions under Part VII of the Act in making Orders that are in [X]’s best interests, pursuant to s.60CA. The Family Consultant recommends an age appropriate progression or movement in time. She does not recommend marking time. Proceed judiciously and prudently, absolutely; but do not impede, at least not without a Report of equal standing and thoroughness, the proper and child-focussed recommendations made by the Family Consultant 10 or so months ago.
Patently the issues are primarily, as they often are, in the strained relationship between the parents, more so than whatever might be the very few, if any, identified problems with the parent-child relationship. Here, the relationship between [X] and her Mother is obviously that of primary carer. The relationship between [X] and her Father is obviously good but still developing. It needs to be facilitated. It will be monitored. The parties need assistance in many respects, for example, (i) in their communication, (ii) in the Father’s growing capacities to look after his daughter, and (iii) in the Mother’s capacities to deal with the past and her ongoing range of anxieties that she still continues to manage.
In my view, the Report of Ms W properly acknowledges the difficulties for each parent and the flow-on effects for [X]. The various concerns set out in the parties’ material and in the Submissions will doubtless be explored in detail at trial, if the matter gets that far, noting (again) that I was told by the Mother’s highly experienced lawyer that the matter would go to mediation in due course after the release of the Report and would doubtless resolve. We all live in hope.
The parties have expended much on a Report from an Expert, not to mention what has been spent on lawyers. It would be a waste not to have proper regard to the recommendations set out in the Report, particularly where there is no Expert evidence to contradict it. As already stated, everyone has had 10 months or so to digest it and to work out the best way to implement it.
Respectfully, to say that the Court should proceed cautiously is to state the obvious; but to stall the matter so fiercely also makes the Report almost useless, if not senseless. The Court and the parties and their lawyers have proceeded cautiously. The parties obtained a Report - it is time to use it, not to put it off again.
Formally, notwithstanding my general acceptance of the Family Report, notably those sections that have been set out in these reasons and especially those highlighted sections, lest there be any doubt I note the following by reference to the legislative scaffold/pathway in Part VII of the Act. I should be taken to follow sequentially the considerations in s.60CC(3) unless otherwise specified.
Given the age of the child, she has not articulated any specific views. That said, the observations recorded by Ms W of [X] with each parent, in many ways, speak more eloquently than words. Clearly, she is much loved, and loves each parent firmly, without any apparent hesitation or qualm. Ah, the wonder and insight of innocence!
The same general comments in the preceding paragraph, especially in the light of Ms W’s observations, apply to s.60CC(3)(b) and (g). It is unnecessary, for present purposes, to comment on [X]’s relationship with other relevant persons.
The strained relationship of the parents, and the limited time that the child spends with her Father, renders any relevant assessment of matters in relation to s.60CC(3)(c), (ca), (d), (f) and (i) inapposite at the present time.
I have noted, as has Ms W, the various and plentiful contentions by the Mother regarding the Father’s alleged conduct during the relationship. Doubtless such matters will feature prominently at any trial for the purposes of s.60CC(2A) and s.60CC(3)(j). I can make no formal findings on the allegations but note the seriousness of the Mother’s claims. Again I simply note that, for present purposes, the Expert had clear knowledge of, and regard to, them in making her recommendations.
Penultimately, not by way of Orders but simply recommendation at this stage: it seems to me that both parties need professional assistance to deal with the aftermath of their failed relationship. This assistance would need to encompass things like communication skills, including perhaps using one of the many parenting communication “applications (“apps”)”; for the Father, perhaps, undertaking an anger management course; and thirdly, some post- separation parenting courses for both parties.
I am proposing that there be an Order for equal shared parental responsibility. That being so, I am required to consider, per the operation of s.65DAA, the applicability or otherwise of an equal time arrangement. For the reason given by the Family Consultant, I do not, on an interim basis, consider this to be appropriate. Nor, for the same reasons, is an Order for significant and substantial time appropriate. Rather, the recommendations of Ms W are in [X]’s best interests.
Lastly, lest it not be clear, this matter needs to progress. It cannot, must not, and will not languish. Unfortunately, in its present state, and the conduct of the matter over the last year or so, it would unhappily fit into the large category of cases which the Government’s recently announced structural reforms are targeted to address. I do not suggest that there is, or has been, any “game-playing”; but it is not, and never has been, a “no contact case.” However, the way it has thus far been conducted indicates that it is rather entrenched, thus far, in the litigious “slow lane”. That is not appropriate.
To state again: the primary dispute is simply a “time with” contest involving a young child and stressed/distressed parents. There is an Expert Report from a person who is widely acknowledged as having vast experience in matters of this kind in all its diverse aspects. One party disagrees with the evaluation and recommendations of the Report, as is their right. Until tested, it is the primary independent evidence before the Court. Its recommendations are, in my view, modest, cautious and child-focussed. In my view, they are in [X]’s best interests, on an interim basis.
For these reasons I make the Orders as sought by the Father which accord with the recommendations of the Family Consultant.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Neville.
Date: 24 July 2018