LACARA & LACARA
[2020] FCCA 1193
•18 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LACARA & LACARA | [2020] FCCA 1193 |
| Catchwords: FAMILY LAW – Interim proceedings – parenting arrangements for child aged 4 – allegations of coercive and controlling behaviour – assessment of risk – nature of interim hearing – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA. 65DAA, 68LA, 69ZN Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 45, 81 Federal Circuit Court Rules 2001 (Cth), rr.1.05, 14.02, 15A.17, 24.03 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 B & B (1993) FLC 92-357 Black & Kellner (1992) FLC 92-287 Briese & Briese (1986) FLC 91-713 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 92-286 Luciano & Luciano [2000] FamCA 401 Mazorski v Albright (2007) 37 FamLR 518 Rana v University of South Australia (2004) 136 FCR 344 Slater & Light [2013] FamCAFC 4 SS v AH [2010] FamCAFC 13 W & W [Abuse allegations: unacceptable risk] [2005] FamCA 89 Weir & Weir (1993) FLC 92-338 |
| Applicant: | MR LACARA |
| Respondent: | MS LACARA |
| File Number: | ADC 2324 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 4 May 2020 |
| Date of Last Submission: | 4 May 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 18 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tredrea |
| Solicitors for the Applicant: | Carmen Wood & Associates |
| Counsel for the Respondent: | Ms Miller |
| Solicitors for the Respondent: | Tindall Gask Bentley |
| Counsel for the Independent Children's Lawyer: | Mr Hemsley |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
The time spending arrangements as provided for in the orders of 27 November 2019 do continue.
Order (3) of the orders of 27 November 2019 is discharged.
Handover is to be conducted at the child’s day care, that being the A Play Centre situated at B Street, Suburb C, SA, or otherwise the child’s kindergarten or child care from time to time and, where this cannot occur, at a neutral public space to be agreed between the parties and failing agreement, to be the D Shop carpark at Suburb E situated at the corner of F Street and G Street, Suburb E, SA.
All handovers are to be conducted by the mother and an agent on behalf of the father, with such agent or agents to be agreed between the parties in writing.
The parties exchange all necessary information between them concerning X’s parenting arrangements, including his dietary, medical and sleeping needs; any particular preferences or interests he has; and particulars of his daily routine and health, whilst in the care of each parent; by means of a communication book to be passed between them at each handover.
Notwithstanding order (5) hereof, the parties are permitted to exchange information electronically in the event of an emergency only relating to the child’s health or in the event that a scheduled handover cannot occur or one of the relevant parties required for it will be delayed.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so.
All interim applications are dismissed.
The father provide the financial documents sought by the mother within 28 days of the date of these orders.
In the period of the adjournment, the parties take part in a financial mediation to be conducted by a mediator to be agreed between them.
Further consideration of the matter is adjourned to 6 July 2020 at 2.15pm for directions.
IT IS NOTED that publication of this judgment under the pseudonym Lacara & Lacara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2324 of 2019
| MR LACARA |
Applicant
And
| MS LACARA |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Lacara “the father” and Ms Lacara “the mother” are the parents of X born in 2016. They disagree about what are the appropriate arrangements for X to spend time with his father, particularly if that time should be subject to some form of supervision. It falls to the court, at an interim stage of proceedings to determine if supervision should continue and, if so, what form it should take.
The controversy between the parties arises in the context of the father’s mental health and whether the father has a sufficient degree of insight into his condition and its implications for X. Issues also arise in respect of the father’s past use of alcohol and the risk he may abuse alcohol in the future with the potential for harm to befall X.
The father concedes that he has suffered from depression and anxiety in the past, particularly in the context of the end of the marriage between the parties. He also accepts that his past use of alcohol has been problematic. However, he asserts that with the assistance of his general medical practitioner, Dr H and his clinical psychologist Dr J, these problems are in remission and currently no longer impact upon his parenting capacity.
The mother, who is a qualified health care worker, has a different view as to the current status of Mr Lacara’s mental health. She remains concerned at his presentation in February 2019, which led to his referral to a psychiatrist, Dr K, whom she asserts diagnosed the father as suffering from recurrent major depressive disorder with a current remission of comorbid alcohol use. As a consequence of this diagnosis and her experience of the father in the period both before and since, she believes the father’s condition continues to represent an unacceptable risk for X.
The father concedes that he consulted Dr K on two occasions, largely at the mother’s instigation and to allay her concerns but neither he nor Dr K believed that it was necessary for him to have any further consultations with the psychiatrist. The mother does not accept the validity of this view and continues to assert that the father interacting with X in anything other than a supervised setting represents a risk to the child’s safety in both a physical and emotional sense.
At an earlier stage of proceedings, the parties commissioned Ms L, an experienced psychologist to prepare a family assessment report. Ms L’s report was released in October of 2019. It reported that X “impressed as a happy and socially confident child in the presence of each parent, with whom he presented as sharing a positive relationship.”[1]
[1] See family assessment report dated 10 October 2019 at page 15
From the father’s perspective, this observation should be the starting point for the court in constructing whatever orders it considers to be in X’s best interests. He considers that the court’s emphasis should be on X continuing to have and extend a meaningful level of relationship with his father. In these circumstances, the court needs to avoid any unnecessary constraints relating to supervision. He contends that if there was any need for such supervision, that need has now passed.
The father characterises the mother as being hyper-vigilant in respect of X and being motivated to give undue regard to his (the father’s) past failings, which he largely attributes to a reaction to the stressful circumstances arising from the parties’ separation and his inability to see X, for personal and subjective reasons unrelated to any objective assessment of the risk he is said to represent for X.
For her part, the mother accepts that she and Mr Lacara have very different views about how X is to be parented, particularly in the context of play and exploring his environment. Where the father sees himself as laid back and flexible, the mother sees him as being cavalier about safety and as allowing X to take part in dangerous activities.
In the context of the parties’ difficult separation, these differences in temperament and attitude have been more pronounced. The father currently characterises the mother’s attitude to parenting as being overly structured, risk averse and hyper-vigilant. Mr Lacara asserts that he has only engaged in the sorts of activities which are usual for a child of X’s age.
The mother concedes that she, like the father, suffered symptoms of anxiety and stress from February 2019 onwards, which resulted in her being prescribed an antidepressant medication. She has also regularly consulted a psychologist, Ms M, since October 2013. Recently Ms M has diagnosed Ms Lacara as suffering mild levels of stress and anxiety.
The proceedings before me have been rigorously contested. In a short time the case has produced many documents. At this stage, it is important that I point out to the parties that I am not in a position to resolve the factual issues arising between them on the basis of those documents alone.
It is the father’s position that he has taken appropriate steps to deal with his emotional response to the emotional tumult arising from the parties’ separation and he now no longer poses any form of threat, if he ever did so to X, whom he loves dearly and it is the mother who has over reacted not him.
Accordingly, he asserts that it is not congruent with an overall assessment of X’s best interests, if he has an artificially curtailed relationship with his father, which he believes will result if supervision is continued and his time with the child is not incrementally increased. Ultimately he wishes to parent X in what is commonly called an equal time regime, with the child moving between his parents’ homes on a weekly basis.
The mother does not agree with the father’s assessment of the situation at present, asserting that he has not been fully candid about his various psychological/psychiatric issues and remains emotionally labile and so a risk to both her and X, unless there is some independent and reliable person present, whom she trusts, to ensure that no harm, either emotional or physical befalls X.
In addition, she asserts that such a person is also required to act as an intermediary between her and the father because their relationship has previously been so volatile and she is frightened of him as a result. Essentially, she asserts that the parenting relationship between the parties is too fraught for them to be able to manage a handover of X directly between them, even if a neutral and busy location is utilised. In this context, the father has proposed the carpark at D Shop, Suburb E be used.
X’s parents are not the only parties to the proceedings. Given the intensity of the dispute between them, on 17 March 2020, it was ordered that X be independently represented in these proceedings. The independent children’s lawyer, for X, is Ashley Kent, an experienced family lawyer employed by the Legal Services Commission of South Australia.
Mr Kent has briefed a barrister, Mr Hemsley to appear on his behalf. Pursuant to section 68LA of the Family Law Act 1975 Mr Kent and Mr Hemsley are required to analyse all relevant evidence and advocate the outcome, in the case, which they believe will best serve X’s best interests.
The current controversy, between the parties, arises at an interim stage. It also coincides with the Covid19 pandemic crisis. As such, the court is not in a position to conduct any detailed investigation, involving cross-examination, in respect of the parties’ competing claims. It is for this fundamental reason that I am not in a position to resolve factual issues. Rather, I must focus on the assessment of risk, whilst bearing in mind the limited nature of the hearing available in which to assess that risk.
In all these circumstances, Mr Hemsley has submitted that it is appropriate that the court take a cautious approach to the issue of supervision. In particular, he has been significantly influenced by reports attributed to one of the potential supervisors, a Mr N. Mr N has indirectly been reported as to having been contacted by the father, in a distressed and possibly inebriated condition, on 19 March 2020, and during a conversation with Mr N, having made serious threats regarding the mother’s safety, which Mr N took seriously as he reported them to the mother.
On the basis of this incident, when set against other difficulties which have arisen in the past, Mr Hemsley submits that there remains a need for some form of supervision to continue and further that Mr Lacara should provide further evidence, particularly of an expert psychiatric nature, that any psychiatric condition, from which he suffers, is being appropriately managed.
Background
The father is forty years of age. He is a professional by profession but is now self-employed. The mother is forty-one years of age and, as previously indicated is a health care worker. The parties commenced a relationship in mid-2010; married in 2012; and separated on 26 February 2019. The father commenced the proceedings concerned in early June of 2019.
Since July of 2019, a series of ad hoc interim orders have managed the father’s time with X. Initially, this was until Ms L was able to provide the assistance of her expert assessment of the family. Hitherto, all of these orders have had a supervision component.
Initially, X’s time with his father was subject to the supervision of the paternal grandparents. They live in City O, Victoria and obviously cannot be easily present in Adelaide. In addition, Ms Lacara no longer has any confidence in them following a contentious but unpleasant incident, involving police attendance, in February of 2020. Other supervisors have been nominated and an order of 27 November 2019 authorises the parties, via their solicitors, to agree on other supervisors.
The mother has also sought orders finalising the division of matrimonial property between the parties. This has resulted in the parties’ former family home being sold. Issues remain outstanding between the parties regarding discovery issues, particularly the use of funds following separation. This has added a further level of tension to the case, which is already a significantly difficult one. Sadly, it is my impression that tensions are escalating rather than diminishing at present.
On 27 November 2019, it was agreed that the father would spend time with X as follows:
·Each Thursday from 2:30pm until 6:00pm;
·On alternative weekends from 9:00am Saturday until 5:00pm the following Sunday.
Ms L’s report was formally filed with the court on 18 November 2019.[2] One particular aspect of Ms L’s report has been highly influential in how the parties, particularly the mother have approached the current controversy. The extract is as follows:
“The extent to which Mr Lacara has shared information about his past mental history with his therapists remains unclear. A report from Dr K, and an updated report from Mr Lacara’s GP and psychologist is advised prior to consideration of any reduction in supervision.”[3]
[2] See affidavit of Ms P filed 18 November 2019
[3] Ibid at page 16
As indicated above, it the father’s position that he saw Dr K on only two occasions, largely to appease the mother’s concerns, which he considered overstated. As such, the need for any report from Dr K he considers otiose, particularly given what he regards as the more comprehensive reports from Dr H and Dr J, who each assess him as being psychologically stable and posing no risk to X.
Obviously, Ms L’s report was and is a significant document. Ms L has a significant advantage over me in this case. She has had the opportunity to see X interact with each of his parents. The report had been ordered to be prepared at the first court hearing date, on 22 July 2019. It had been hoped that it would pave the way for the parties themselves to achieve a consensual resolution of any issues arising in respect of X’s care based on Ms L’s expert opinion founded upon a direct observation of X himself. Regrettably, this did not prove to be the case.
When the case returned to court on 27 November 2019, the parties agreed on further supervision, over the Christmas period, whilst they each considered the implications of Ms L’s report. The case was adjourned until the New Year, specifically 17 March 2020, during which period each party was given an opportunity to file any further relevant evidence, particularly in respect of the father’s alcohol consumption.
As at 17 March 2020, Mr Lacara had not filed any medical evidence, as proposed by Ms L. At this stage, Ms Lacara indicated that she was in agreement, in general terms, with Ms L’s recommendation. Essentially, she supported the father providing her with an assessment by his GP; his psychologist; and a psychiatrist, namely Dr K.
Previous arrangements had envisaged one of an agreed list of seven nominated supervisors. The father has proposed others to act as supervisors, none of whom have been acceptable to the mother. As such, it seems to me, that rather than reducing over time, tensions have risen between the parties.
In this context, on 6 March 2020, Ms Lacara deposed as follows:
“I seek an order that Mr Lacara advise me no later than 48 hours prior to his time, if he cannot find a supervisor. X is often excited to spend time with Mr Lacara and he is disappointed when this does not occur…
Further, Mr Lacara has been aware that this time is to be supervised and therefore should know well in advance who can supervise his time. Being given one (1) hour to respond is unreasonable.”
Against the background of the failure of the father to provide the medical evidence sought by the mother and the growing controversy about the substitution of supervisors, the parties were not able to agree on a way forward in any comprehensive way. In addition, the interim hearing was not able to proceed. It was against this background that the order was made for X to be independently represented and the case was adjourned for further interim hearing on 4 May 2020.
As all concerned will be aware, this period also coincided with the pandemic crisis emergency and the lock down of large sections of the community, both in South Australia and nationally. Against this background of significant social upheaval and uncertainty, it is Mr Lacara’s position that all of the hitherto agree supervisors were either no longer able or willing to supervise his time with X.
It is also his perception that the mother was inclined to reject any person put forward by him because she wished to frustrate him being able to spend time with X. It is his case that Ms Lacara has been singularly difficult to deal with, in respect of everything to do with him spending time with X.
In these circumstances, Mr Lacara concedes that he became increasingly frustrated by what he considered to be the mother’s concerted attempts to obstruct his relationship with X. It is in this context that he momentarily lost composure and said things to Mr N, which were ill-considered but not intended to be carried out.
It is also the flavour of his case that the mother is well aware that he is able to easily succumb to emotional stress and she is adept at engineering situations, which have the potential to put him in a bad light, particularly with authorities, such as the court. Essentially, it is his case that the mother has an agenda to make things as difficult as possible for him.
On the other hand, it is the mother’s case that she does want X to have a relationship with his father but also X to be safe. She has no confidence in the father and does not trust anyone associated with him, including his parents.
It is further her case that the difficulty the father has had in organising supervisors and getting together a comprehensive range of medical material, as endorsed by Ms L, is indicative that something is not right in his household and, as such, the court needs to take great care, particularly in respect of disregarding the unequivocal recommendations of Ms L.
From her perspective, the outburst involving Mr N indicates clearly her fears are real and she cannot be categorised, in any objective sense, as being the hyper-protective and manipulative parent, as portrayed by Mr Lacara.
Before turning to the applicable legal principles, it is necessary to turn to the parties’ respective cases, in a little more detail, particularly in respect of the medical evidence thus far provided by the father, which he asserts is sufficient to allow the court to move to unsupervised time.
The father’s case
The father’s case can be summarised as follows:
·X is a bright and energetic child, who loves running around, getting dirty and playing with trucks;
·During the parties’ relationship, he was fully involved with parenting X and engaged in the types of activity which befit an active child such as X;
·He was a hands on parent;
·The parties have very different parenting styles;
·The later stages of the parties’ marriage were toxic and led to him contracting depression and self-medicating through excess alcohol consumption;
·He self-admitted to hospital in November 2018;
·He ceased alcohol use in September 2018;
·Thereafter, he has appropriately accessed medical/psychological support through Dr H and Dr J;
·Dr H tested him for the presence of blood alcohol satisfactorily in early 2019;
·He attended upon an addiction medicine specialist, Dr Q, at the mother’s request, in mid-2018. Dr Q does not consider that the father needs to return and has attributed his prior alcohol use to the conflict between him and the mother;
·He has done a parenting course;
·He has not seen Dr K since March 2019;
·The mother suffers her own psychological infirmities;
·The mother unilaterally withheld X from him in April 2019, precipitating the need for him to institute the current proceedings;
·Since 22 July 2019, his time with X has gone well and X is excited and affectionate towards him.
Dr H’s report
Dr H has been the father’s doctor since mid-2009 and has been consulted by him many times. His report was dated 20 April 2020 and he last saw the father on 17 April and so his report reflects a contemporary view of the father’s condition.
He refutes any suggestion that the father has been diagnosed with a borderline personality disorder. He regards the father as compliant with his current medication regime. In this context, Ms Miller, counsel for the mother, makes much of Dr H’s comment as follows:
“Mr Lacara requires ongoing medication in the form of Venlafaxine presently 150mg daily, regular psychological review, intermittent psychiatric review, and regular general practitioner review.”[5]
[5] See Dr H report dated 20 April 2020 at page 5
The implication being that the involvement of Dr K is an essential element of the father’s ongoing mental health regime. This is not necessarily consistent with other observations of Dr H namely that “as long as Mr Lacara remains actively engaged with his treatment recommendations both pharmacological and psychological I believe his major depressive disorder with anxiety will be well managed in the long term”.[6]
[6] Ibid at page 7
Dr H also alludes to a childhood diagnosis of dyslexia and ADHD, which he indicated had been comprehensively reviewed and contextualised, presumably at an earlier stage. The relevance of this reference will become clear, given Ms Lacara’s later criticisms of the father.
Dr H’s opinion was that the father had shown a continued improvement in his mental health over the past twelve months and as such he did not believe that the father was likely to be noncompliant with treatment in future as he was strongly motivated to remain well.
In the doctor’s opinion, exposure to the mother represented a trigger for his mental health but the sensitivity of this was reducing over time to the extent that the father could manage a hand over, with the mother, without the potential bias of third parties, at a more neutral public location.
Dr H considered that the father’s alcohol use disorder had been in remission since March of 2019 and he was not currently alcohol dependent. It is apparent that he had not been appraised of the recent concerns relating to the disclosures said to have been made to Mr N and their context.
The most salient of Dr H’s opinions is as follows:
“Mr Lacara’s major depression with anxiety remains in remission, he does not presently suffer from an alcohol abuse disorder, nor does he presently fulfil the diagnostic criteria for ADHD and he has never been diagnosed with Borderline Personality Traits, consequently I do not believe that Mr Lacara’s present mental health condition impacts upon his parental capacity, including his capacity to safely and adequately care for X on a supervised or unsupervised basis.”[7]
[7] Ibid at page 7
Dr J’s report
Dr J has been regularly consulted by the father since September 2018 and last on 31 January 2020 with her most recent report being dated 10 February 2020. She also opines that Mr Lacara does not fit a diagnosis of borderline personality disorder and confirms that he does not currently meet the criteria for alcohol use disorder. Her diagnosis was and remains one of anxiety and depression, with symptoms ranging from mild to moderate.
Dr J also spent a significant proportion of her report dealing with the father’s earlier diagnosis of specific learning disorder and ADHD, terms which she indicated he had used interchangeably. In this context, she examined a variety of reports relating to the father dated between 1987 and 2000 – that is relating to the father between the ages of around 13 and 20.
Dr J concluded that the father had been prescribed medication by a paediatrician to assist with his attention as it related to his capacity to process verbal and written language. She further noted that he was not currently receiving medication for ADHD and had no concerning symptoms to warrant a diagnosis of ADHD.
Dr J has reported as follows:
“With respect to Mr Lacara’s fluctuating anxiety and depressive symptoms. His condition is overall mild-moderate, and has identifiable situational triggers. Significant factors that contributed to the worst period of his mental health are no longer relevant following his hiring of administrative support and his marriage separation. As noted, his main source of distress at this time is his separation from X. It is my opinion therefore that his mental health would be improved by more regular and unsupervised contact with X. As it stands currently, I do not believe that his anxiety and depressive symptoms affect his parental capacity to safely and adequately care for X on a supervised or unsupervised basis.”[8]
[8] See Dr J’s report dated 10 February 2020 at page 8
The mother’s case
It is the mother’s case that the father’s mental health issues and alcohol problems are long standing and pose a threat to X’s safety. These concerns are intensified by what she regards as the father’s cavalier attitude to the child’s safety.
She is highly critical of the father’s parents for not returning X to her as scheduled on 13 February 2020. This, on her case, has led to an escalation of tensions at handovers and resulted in the father calling police. When the police arrived the father said to the officer “she is a health care worker and she thinks she is better than anyone else”.
The precise aetiology of this dispute, which appears to have rapidly become highly malignant, is unclear to me other than there was a disagreement about whether return was at 6.00 pm or 6.45 pm and a dispute about the location of handover – D Shop, Suburb E or the father’s home.
This in turn led to letters being exchanged between the parties’ solicitors about the use of alternative supervisors, which the father was not able to satisfy. Accordingly, it is the mother’s position that, contrary to what Dr H and Dr J have indicated, in her direct experience there has been an escalation in the father’s difficulties, which she believes requires some form of psychiatric investigation, as recommended by Ms L.
More recently again, the mother has filed an application in a case seeking that the father file an affidavit of documents within fourteen days and pay her costs fixed in an amount of $1,867.00. The father’s position is that he has provided a comprehensive informal schedule of documents. His counsel, Mr Tredrea, after the issue was canvassed in open court has indicated that what is outstanding relates to up-dated bank statements and they can be provided without the formality of an affidavit of documents.
Ms L’s report
Ms L was of the view that each of the parties love X very much. I agree. However, she considered that the evidence available to her indicated that it was the mother who had been his primary carer. As such, given what had occurred around the time of the parties’ difficult separation, particularly in connection with Mr Lacara’s alcohol use and mental health, made her concerns about X’ safety and wellbeing understandable.
In this context, given X’s obvious strong relationship with his father, this did not cause her to discount the benefits X would derive from maintaining a meaningful level of relationship with his father. The key to moving the matter forward, in Ms L’s view, was on the parties developing a greater degree of trust in one another and an effective manner of communication.
Sadly, it would appear that recently whatever level of trust had existed, it has evaporated and communication has become more problematic rather than less so. Whatever communication occurs, it seems mainly to arise through legal correspondence and what is said at court hearings. Ms L wrote as follows:
“While the parties have markedly different parenting styles, they both have a lot to offer X in terms of their personal strengths, despite their differences. This however, requires both parties to respect the other parent’s concerns/expectations related to providing optimal care for X.”[9]
[9] See Family Assessment Report at page 16
Ms L was of the view that the advancement of the father’s time to be spent with X was dependent upon the parties’ ability to communicate effectively with one another. In this context, trust would depend on the father being frank about his mental health and alcohol use.
Ms L indicated that she had spoken with Dr K, who confirmed, as the father has indicated, that he saw Mr Lacara on two occasions in May and July of 2019. Dr K indicated that he was not in a position to formulate a diagnosis and Mr Lacara had indicated a preference to attend the psychiatrist on a needs basis.
In my view, there is a lack of precision about Ms L’s key recommendations in the context of the current dispute. Under the heading future arrangements she wrote as follows:
“… a reduction in supervised time is not advised until Mr Lacara has completed the Circle of Security program and provided a report from his psychiatrist, psychologist and GP in relation to the status of his mental health//alcohol dependence.”
Ms Lacara seizes on this recommendation and asserts that Ms L is stipulating the production of a psychiatric report as a condition precedent to the reduction of supervision. In this context, she relies on the earlier statement of Dr H regarding the need for intermittent psychiatric review.
It is the father’s position that he does not formally have a psychiatrist as he relies on the advice of Doctors H and J, who satisfy Ms L’s concerns. The recommendation of a report from his psychiatrist being based on a misconception, by Ms L, in respect of whom Mr Lacara has been regularly consulting in respect of the issues of concern raised by her. Dr K did not provide Ms L with a diagnosis and what he told her was broadly consistent with what the father has said that he does not feel the need to consult a psychiatrist at present.
Clearly, Ms L is the person best placed to clarify what she meant by her recommendation. In my view, I must be careful not to apply a too proscriptive approach to what she wrote. At least one implication of Ms L’s report is that, if Mr Lacara was seeking psychiatric treatment, in order to inculcate trust with Ms Lacara, he should provide her with evidence in respect of that treatment rather than the provision of such a report being a condition precedent for the relaxation of supervision.
What Ms L did say, perhaps in an attempt not to pre-empt the court’s fact finding role, was that in the absence of concerns the next step would be a relaxation of supervision starting with the Thursday afternoon visit and daytime on weekends.
In my view, this is the nub of the present case – should the court continue to have concerns, notwithstanding the positive reports of Dr H and Dr J, who clearly are well qualified clinically and know the father well, given recent incidents, particularly what seems to be a gross deterioration in the parties’ relationship with one another.
Present concerns
The matter returned to court, following the release of Ms L’s report, on 27 November 2019. The parties reached a consent agreement on this date. It seems to me to have been carefully crafted but nonetheless contained within the seeds for the current disagreement. The order in question was as follows:
“That the father do provide an updated report from his psychologist and GP and file same at [the court] by 30 January 2020 upon noting the mother requests he also produce a report from his psychiatrist”.
Accordingly, the father was not ordered to produce a psychiatric report, he was requested to do so. Against this background the case was adjourned until 17 March 2020, as the pandemic crisis was unfolding. The mother was critical of the father for not following the advice of Dr K and not providing the medical material recommend by Ms L and further not taking steps to discuss his diagnosis of ADHD with Dr K.
The mother complained, in December 2020 of being bombarded with text messages and emails from the father in which he demanded information about X. She also complained that he contacted her father. Issues also arose, of a controversial nature, regarding which primary school X should attend.
The father was non-compliant with the order of 27 November 2020, in terms of filing any medical material, which did not, for obvious reasons, lead to any reduction in the suspicions and recriminations running between the parties. Indeed, it seems self-apparent that things were going from bad to worse in this regard. Nothing of any moment was achieved on 17 March other than, in the light of the escalating tensions, an Independent Children’s Lawyer was appointed for X. The case was adjourned until 4 May 2020.
On 28 April 2020, the mother filed an affidavit in which she was critical of the father’s behaviour, which she categorised as being increasingly erratic. She asserts that she feared for X’s safety, whilst in the care of his father. It was around this time, on 19 March 2020, she received an email from a mutual friend of the parties, Mr N. In her affidavit, the mother gave this history of her interaction with Mr N:
“... Mr N emailed me stating he was concerned about Mr Lacara's mental state and explained to me that Mr Lacara had telephoned him sobbing, being very distressed, likely intoxicated and that he was going to visit my clinic tomorrow.
Mr N wrote that he received text messages from Mr Lacara saying goodbyes. Mr N’s wife Ms R also sent me a message via Facebook expressing her concerns. I found this concerning given that I had not spoken to either Mr N or his wife since early 2018.
Receiving this email I telephoned Ms R’s mobile phone, speaking with Mr N. He explained that Mr Lacara was out of control, on edge and potentially inebriated. Mr N works in the media and Mr Lacara asked him how much media coverage he would get if he drove a bulldozer into my workplace the following morning.
I understand that Mr N tried to calm Mr Lacara down and encouraged him to find someone to be with him and get help if needed.
…
Concerned about the threats of violence to me and my workplace I contacted South Australia Police and I was advised to attend at the police station the following morning to make a formal report. I attended at the Suburb S Police Station the following day filing a report being number ....
Further I was informed that police were to undertake a safety check on Mr Lacara but I do not know the outcome of same.[10]
[10] See mother’s affidavit filed 28 April 2020 at [9] – [11], [13] – [14]
Mr N has not filed an affidavit personally in these proceedings. In addition, whatever the father said, it is clear that he did not carry through with any direct threats against the mother. She attributes this to the possible involvement of the police, who undertook a welfare check in respect of X, whilst he was in his father’s care.
On 22 March 2020, the father advised the mother that he would be travelling interstate. It was common ground that Mr Lacara departed South Australia on 25 March 2020 and ceased to spend time with X from mid-March onwards.
Mr Lacara formally responded to the mother’s various criticisms of him in an affidavit of 30 April 2020. It was at this stage that he provided the proof that he had attended the Circle of Security parenting course and the reports from Doctors H and J, to which reference has already been made.
He further deposed that he was in the process of completing the Triple P parenting program. In these circumstances, it is the father’s position that he has done all that was required of him in terms of Ms L’s report. In this context, he asserts that Ms Lacara is being difficult for its own sake and has exaggerated her concerns about him.
In particular, he asserts that Dr J has conducted all the relevant diagnostic tests relating to the mother’s concerns that he suffers from borderline personality disorder, ADHD, post-traumatic stress disorder and a narcissistic personality disorder and has found that he does not satisfy the diagnostic criteria for them. Rather, he asserts that the unequivocal opinion of Dr J and Dr H is that he suffered an emotional reaction to difficulties arising in both his marriage and business, which subsequently resulted in him being separated from X.
It is now his position that his condition is in remission because he has separated from Ms Lacara and has obtained assistance in his business. Accordingly, the only factor likely to precipitate any relapse in his mental health is to be restricted in the time, which he spends with X.
By necessary implication, it is Mr Lacara’s position that the mother is well aware of this and has elected to restrict his time with X, so as to precipitate an extreme reaction from him. For her part, the mother asserts that she is only reacting protectively because of the father’s extreme behaviour.
At this stage, I am unable to definitively resolve this central issue in the case. But, more likely than not, each parties’ position has more than a germ of truth to it. The mother acknowledges she is likely to be protective of X; the father acknowledges that he has been frustrated by the slow progress of his current application.
Essentially, to adopt a perhaps unsatisfactory metaphor, the parties are trapped in a revolving door with the father pushing against it, whilst the mother retreats. The door generates its own energy and heat, which is not particularly helpful, as its progress is only circular.
It also seems clear that Ms L was keen to negate this particular dynamic, which she believed depended on the creation of a greater degree of trust and better communication between the parties themselves. This clearly has not occurred in the period since her report was released. Rather, as I have regretfully indicated, it seems things have gotten worse rather than better.
In this context, I am concerned that the parties present me with, in effect, a zero sum game. Either I do what the mother proposes, which will intensify the father’s feelings of resentment and frustration; or I do what the father proposes, which will leave her feeling unheard and unheeded in respect of what she considers the father’s hectoring and intimidatory behaviour.
At this juncture, I hasten to point out to the parties that it is X’s best interests which must be the determinative factor in the case and not their respective feelings. In particular, it is contrary to any principle relating to X’s best interests that arrangements for his care should be utilised to augment one of his parents’ mental health.
Mr Lacara denies that he has subjected the mother to voluminous email traffic, asserting that the degree of correspondence is necessary to ensure the child’s smooth transition between his parents. He ascribes other comments made by him to Ms Lacara, to which she has taken offence, as being tongue in cheek, which he attributes to his frustration arising from the communication difficulties between the parties. In this context, he does not accept that the problems can be sheeted home to him alone.
All these difficulties, it appears to me, have become more heightened in the challenging circumstances arising as a consequence of the pandemic crisis. In this context, Mr Lacara has deposed to becoming increasingly stressed and upset at his perception that Ms Lacara was unwilling to be flexible about his arrangements to spend time with X and that his various supervisors had indicated their unwillingness to continue with supervision because of the restrictions placed on social interactions because of Covid19 implications.
In this context, Mr Lacara deposed as follows:
The uncertainty around my time spending with X, knowing that I was not going to be able to see and/or contact X for a significant period of time, combined with Ms Lacara’s [the mother’s] lack of communication with respect to X and her lack of flexibility trigged a depressive variability in my mood causing me to react.
I confided in Mr N for emotional support because I was distraught and very stressed. I never had any intention of carrying out any harmful or damaging behaviour. Dr J and Dr H both thoroughly detail the triggers of my mental health being associated with stressors due to these proceedings.”[11]
[11] See father’s affidavit filed 30 April 2020 at [44]-[45]
It was for these reasons that the father elected to travel to Victoria in order to give himself some space to clear his head. For her part, the mother points to the fact that the father has not specifically denied the gravamen of his comments to Mr N and, as a consequence, it is her position that she remains fearful of the father. As previously indicated, it is this incident which has strongly influenced counsel for the independent children’s lawyer, Mr Hemsley, who submits that the current regime of supervision, including at handover, should continue.
The difficulty of the current dispute is intensified by the fact that Mr Lacara has deposed that all his currently nominated supervisors are either unwilling or unable to continue to supervise his time with X because of the Covid19 restrictions. As such, he describes himself as being at his wits end in respect of how to advance his relationship with X.
Mr Lacara also has expressed his frustration in respect of the property proceedings between the parties, which he asserts are ready for mediation by Mr T. As previously indicated, it is his position that there are a few recent documents, which he is willing and able to produce expeditiously. As such, there is no utility in an affidavit of documents being produced.
The nature of an interim hearing
By their nature, interim hearings invariably arise against a background of serious family crisis and controversy. Given the urgency arising, such cases have to be listed expeditiously.
However due to the pressure of its business, the court is rarely afforded the opportunity to conduct a lengthy hearing, involving cross-examination of parties, which would enable factual issues to be resolved on the basis of findings of credit, at this interim stage.
In the current matter, there are many issues in dispute between the parties, the major one of which is who of them is driving the acrimonious dispute between them.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[12]
[12] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Unlike many other interim hearings, I have been provided with a closely considered family report. In the report, Ms L has focussed on the dichotomy of the parties’ parenting styles and highlighted their communication difficulties. Significantly, she has also emphasised the closeness of X’ relationship with each of his parents and the benefits he is likely to derive from maintaining relations with each of them.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[13] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[13] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
It is the tenor of the mother’s evidence that she has been subject to some form of coercive or controlling behaviour, emanating from the father, which satisfies the definition of family violence contained in the legislation. Essentially, it is her case that Mr Lacara has bullied and intimidated her at handovers and through his electronic correspondence.
Mr Lacara denies these allegations asserting that he has not intended to coerce or control Ms Lacara but has only been acting out his frustrations. In this context, he would include whatever he said to Mr N.
It is also the mother’s case that in May of 2018, when the parties were in holiday in Country U, Mr Lacara slapped X on his back.[14] In her associated Notice of Risk, the mother has asserted that X is at risk of coming to harm, when in his care, because of his father’s potential to behave in an erratic and violent manner, when he has been drinking.
[14] See mother’s affidavit filed 18 July 2019 at [16] – [19]
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (j) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
At the interim stage, it is difficult for the court to characterise the various episodes outlined by Ms Lacara, which she asserts represent threats to her and X’s safety. These allegations turn on Mr Lacara’s behaviour when he has been drinking or depressed and, more recently when he asserts he has been stressed. As with other aspects of abuse and family violence, concerning a child, it is a question of a court endeavouring to assess the relevant level of risk, for any particular circumstances relating to the case concerned.
In Deiter & Deiter,[15] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[15] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [16]
[16] Slater & Light [2013] FamCAFC 4 at [37]
The risk identified by the mother is that X may be either emotionally discomforted or, in an extreme case, subject to some level of physical harm, if the father consumes alcohol in excess or suffers an exacerbation of his pre-existing mental health conditions. Essentially, she does not accept that the father’s mental health is in remission or is properly treated at present.
Although she does not express it in concrete terms, Ms Lacara also suggests that she will have difficulty in dealing with an outcome involving X interacting, with his father, in an unsupervised setting.
In B & B[17] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[17] B & B (1993) FLC 92-357 at 79,780
It is also the mother’s case that she is at risk, if she is called upon to deal directly with Mr Lacara at handover because of what she characterises as his labile and unpredictable behaviour, which is manifest by an unacceptable level of aggression, directed towards her.
Mr Lacara also asserts that there are risks implicit in the case relating to X’s best interests. Essentially, he contends that there is a very real risk that X will lose a warm, intimate and spontaneous relationship with him because of the mother’s uncertain and inchoate allegations that he represents some form of risk or danger to X.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Legal principles relevant to discovery in the Federal Circuit Court
The overall objectives of the court are set out in section 3(2) of the Federal Circuit Court of Australia Act 1999.[18] In this section, the court is directed to “operate as informally as possible” in the exercise of its judicial functions and is further directed “to use streamlined procedures”.
[18] Hereinafter referred to as the FCCA Act
In addition, pursuant to section 42 of the FCCA Act, the court is directed by the use of the word must to:
“… proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
Given its imprimatur to be a streamlined lower level Federal court dealing with less complex disputes than are currently dealt with by either the Family or the Federal Court, the Act provides a qualified prohibition against the use of either discovery or interrogatories in the Federal Circuit Court. In particular, section 45(1) of the FCCA Act provides as follows:
“(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.”
Pursuant to section 45(2), in deciding whether to make such a declaration, the court is directed to have regard to the following matters.
“(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.”
Pursuant to section 81 of the FCCA Act, the Judges of the Court are authorised to make rules in relation to the practice and procedure to be followed in the Federal Circuit Court. As a consequence of this power, the Federal Circuit Court Rules 2001[19] have been created.
[19] Hereinafter referred to as the Rules
Pursuant to rule 1.05(1), these rules are intended to govern the practice and procedures of the court. However, if the rules are insufficient or inappropriate, in any particular case, the court may apply the Federal Court Rules, if it is necessary to do so.[20]
[20] See Rule 1.05(2)
Rule 14.02 of the Federal Circuit Court Rules deals with disclosure of documents generally and discovery, pursuant to section 45(1), specifically. The court may make a declaration under the section, either on the application of a party or on its own motion.
Rule 14.02(2) authorises the court to make an order for disclosure:
·Generally; or
·In relation to particular classes of documents; or
·In relation to particular issues; or
·By a specified date.
In these circumstances, it appears that section 45 creates a rebuttable presumption, in proceedings before the court, that discovery will not be generally permitted. The exercise of the presumption is subject to the interests of the administration of justice. This is consistent with the Legislature’s direction, arising from section 3 of the FCCA Act that the Court is to act informally and utilise streamlined procedures.
Rather, before any order is made for formal discovery, the court must formally declare that it is appropriate, in the interests of the administration of justice, to allow discovery. The exercise of this discretion is governed by considerations of whether discovery would likely assist in the fair and expeditious conduct of the case concerned and any other relevant matters.
In Rana v University of South Australia[21] Lander J recognised that this court, referring to its precursor, the Federal Magistrates Court:
“…has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure proceedings are not protracted: [section 42]. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.”
[21] Rana v University of South Australia (2004) 136 FCR 344 at [34]
Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 45(1) is distinct from the interests of the parties concerned in any particular piece of litigation. It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the court resources are utilised rationally and carefully for the benefit of all.
In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
In my view, considerations of this type have informed the Legislature’s directive in respect of the issue of interrogatories and discovery, in this court, which is placed on the lowest rung of the Federal Judiciary and, as such, is directed towards the resolution of less complicated matters falling within its jurisdiction.
In this context, what was said by the former Chief Justice of the High Court, French CJ in Aon Risk Services Australia Limited v Australian National University[22] appears germane. His Honour said this:
“The adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.”
[22] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [23]
The formal process of discovery is not the only mechanism by which parties to proceedings can access documents. Rule 15A.17 of the Federal Circuit Court Rules provides as follows:
“(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.”
The parties to proceedings, under the Family Law Act, involving property issues are subject to a duty to make full and frank disclosure. This process is mandated by Rule 24.03 of the Federal Circuit Court Rules 2001. It is facilitated by the requirement to file a statement of financial circumstances and the production of a stipulated number of financial records, such as tax returns and superannuation records.
In maintenance cases, it also entails the production of bank records for the past twelve months; payslips; business activity statements; and documents which may assist the court in determining the income, needs and financial resources of the individual concerned.
However, the duty to provide full and frank disclosure does not arise solely under the court’s rules but is also a fundamental principle of common law. This duty has been described as being “fundamental to the whole operation of the Family Law Act in financial cases…”[23]
[23] Per Smither J in Briese & Briese (1986) FLC 91-713 at 75,181 cited with approval by the Full Court in Black & Kellner (1992) FLC 92-287 at 79,133
For obvious reasons, for parties to be able to engage in fair negotiations in order to resolve property issues arising between them and, in the event such negotiations fail, for the court to make a fair adjudication, it is necessary for all concerned to have a comprehensive picture of the financial affairs of the parties involved.
Given one of the central functions of the court is to assess financial contributions made by the parties concerned, it is very often the case that this duty has historical connotations, as necessarily such contributions were made in the past.
In Weir & Weir the Full Court of the Family Court said as follows:
“…the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contributions, or to properly assess section 75(2) factors.”[24]
[24] Weir & Weir (1993) FLC 92-338
Accordingly, the duty to make a full and frank disclosure, in financial matters brought under the Family Law Act, does not arise merely by virtue of the rules of practice of the court but rather is a fundamental rule of law, which arises because of the necessity for the court, in each property proceeding arising before it, to consider all aspects of the financial circumstances of the parties concerned.[25]
[25] Luciano & Luciano [2000] FamCA 401 at [373]
In this case, accordingly, each party is under an obligation to provide disclosure of all relevant financial information to the other. If it is later established that one of the parties has been derelict in this duty the court is entitled to infer that such dereliction has occurred for some ulterior or sinister motive.
One such motivation may be a desire to ensure that the other party concerned is placed at a financial disadvantage in respect of the adjudication of the applicable property issues. In such an eventuality, the applicable legal principle is that the court should not be slow in making appropriate adjustments, in favour of the person so disadvantaged by financial concealment to the disadvantage of the person seeking to be disingenuous or manipulative.
Discussion
In my view, this case represents some of the worse aspects of adversarial litigation affecting children. Allegation has met counter-allegation, producing multiple affidavits and reports. The level of conflict and the expenditure it represents is not likely to be helpful to X.
What is clear, after reading the many pages of affidavits filed by each of the parties and further what does not appear to be particularly controversial are the following matters:
·X is loved by both his mum and dad and has a good relationship with each of them;
·His parents have different parenting styles and views about life in general;
·The parties fervently mistrust one another and communicate poorly.
Apart from earnest hand ringing, there is nothing I can do about the parties’ poor and conflicted relationship. The solution to this problem is in their own hands. I must do the best I can do, from X’s perspective, to achieve an outcome which will best serve his interests. Necessarily this must include me giving earnest consideration to the benefits he is likely to derive from maintaining a meaningful level of relationship with his father.
At the same time I cannot ignore protective concerns germane both to him and his mother. However, I must guard against being overly proscriptive or relying on inchoate or imprecise allegations.[26] Rather, I must consider what is a proportionate response to the degree of risk arising, following my examination of the evidence available to me at the interim stage.
[26] See W & W [Abuse allegations: unacceptable risk] [2005] FamCA 89
Essentially, what I must do is look to the future – firstly, what is the likelihood of the occurrence of a harmful event occurring for a child and secondly, what is the likely impact of such an event on the child concerned, if it occurs.
This is a difficult task, at the interim stage, but cannot be postponed until the final hearing, which in this case, may be some time off. If an unduly conservative approach is taken to the risk arising in the case, it may mean that X will be deprived of the benefits of having a meaningful level of relationship, with his father, which is not likely to be in his best interests.
In Deiter & Deiter[27] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[27] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[28] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[28] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[29] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[29] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
One further practical difficulty arises in this case. The mother asserts that a supervisor is required for X’s time with his father. The father asserts that he simply does not have access to such a supervisor. In factual terms, I am not in a position to resolve this controversy definitively but necessarily it must have some implications for the orders which I must make.
It may be the case that the father is attempting to force the court’s hand in this regard by asserting untruthfully that he cannot find a supervisor. On the other hand, if his evidence is correct, it would be highly regrettable that X is deprived of meaningful time, with his father, because of the absence of such a person or persons.
Again, this type of controversy epitomises the worst aspects of the adversarial system, as it applies to children. Regrettably the parties are simply unable to approach this issue as a problem to be consensually solved. Rather, each asserts that his/her unbending proposal is the best one for X.
On the basis of the evidence available to me, from Doctors H and J, it seems more likely than not that the father’s mental health issues have received appropriate treatment and he (Mr Lacara) has some degree of insight into the matters which trigger a decline in his mental health. These triggers seem to include stresses related to his former partner and alcohol use.
It cannot be said that Mr Lacara has not diligently sought out assistance from both his GP and psychologist. Their reports indicate that he has attended upon them on multiple occasions and the vast majority of concerns, in diagnostic terms, raised by Ms Lacara have been shown to have no foundation or one of only historical concern.
It would also seem to me to be unlikely that Mr Lacara would willingly wish to harm X. Indeed, it is the mother’s case that the risk arising is of the father losing his temper, particularly whilst intoxicated and lashing out at X. This appears to be the gravamen of the Country U incident in 2018.
The mother’s concerns about the father’s permissive parenting and lax attitude towards safety issues represented by such things as waterslides and robust physical play are more inchoate. I am not convinced that they are of sufficient moment to require continual supervision. The controversy is more likely to relate to issues arising from the parties’ different parenting approaches.
Much is made of the absence of a psychiatric report, for the father, by Ms Lacara and those advising her. I can understand why the mother would want such a report, particularly given her own expertise and the fact that it was she who agitated for Dr K’s involvement initially. I can also understand why Mr Lacara would consider that he does not currently require psychiatric treatment, given his relationship with his GP and psychologist.
I appreciate that Ms L has a significant advantage, over me, in these proceedings in the sense that she has been able to engage directly with the parties and see each of them interact with X. However, it is the court, rather than Ms L, who must decide this difficult case. I am not persuaded that Ms L was of the view that the production of a report, from Dr K, was an essential condition precedent to the relaxation of the father’s time, with X.
Although it is important that Ms Lacara have a sense of confidence in any orders, which the court makes regarding X, these considerations must not become an impediment to the court’s overall obligation to consider the benefits deriving, for X, of maintaining a meaningful level of relationship with his father.
Dr K has not seen Mr Lacara for a significant period of time. For all I know, Mr Lacara may derive significant benefits from seeing the psychiatrist again. Equally possible, he may not. A positive report from Dr K may make Ms Lacara feel more confident. These issues are all matters of conjecture. They cannot be definitive factors in the case given that the evidence indicates that Mr Lacara has actively taken medical and psychological advice and has indeed done the parenting courses required of him.
In addition, I am not in a position to discount his evidence that his life is in a better state of repair than it was at the time of the parties’ separation. In all these circumstances, I consider it unlikely that Mr Lacara would expose X to any form of harm, either psychological or physical, whilst in his care. As such, I do not consider that the presence of a supervisor would be a proportionate response to the degree of risk represented by Mr Lacara.
Essentially, in my view, the most important factor in the case is the father’s undoubted love for X, confirmed by Ms L. This relationship arises because the two have shared a household for the vast majority of X’s life. On this basis, the relationship between father and child (and indeed between paternal grandparents and child) must be considered a highly significant one for X.
The Covid19 crisis appears to have brought the parties’ relationship, already difficult, to its present nadir. Mr Lacara asserts that it lead to the withdrawal of his supervisors in a situation which did not coincide with any concomitant accommodation or empathy from Ms Lacara.
He asserts that it was his reaction to the frustration engendered by this situation, particularly that he could not engage with X, which caused him to act out in the manner described by Mr N. Mr Lacara points to the fact that no actual anti-social acts were committed by him, against the mother and, to a certain extent, it was a responsible action on his part to withdraw from the stressors then prevailing in his life by going to Victoria, when he did.
I must make an assessment of the level of risk arising from the conversation between the father and Mr N, to which Ms Lacara was personally not privy, but which was apparently of sufficient moment to cause Mr N to contact her. It is the submission of the mother’s counsel that the incident must be regarded as serious given Mr N’s actions.
It does not appear to be the case that Mr Lacara has been charged with any offence arising out of the alleged threats made by him to Mr N. In addition, the mother herself has not seen fit to secure a family violence order against Mr Lacara, nor has she done so since the parties separated.
The threats, if made by the father to Mr N, must be regarded as being very serious. In effect, it was a threat of urban terrorism – the driving of a bulldozer into where Ms Lacara works with the intent to draw as much attention as possible and do the maximum amount of harm.
If Mr Lacara was only venting his frustration, it was extremely foolish for him to have done so. The action has done his case an inordinate amount of harm. Certainly, the prospect of him turning around his currently disastrous parenting relationship with the mother seems to have been indefinitely deferred.
On balance, given the father’s background and previous history of violence, it seems more probable that his actions were a stupid act of braggadocio intended for Mr N’s ears alone. However, no one, apart from the father, can be entirely certain in regards to what he meant to convey and to whom. The person best placed to provide information about the affect and context of Mr Lacara’s comments, in objective terms, is Mr N.
Was the father’s tone angry or threatening? Was he ranting? Was he calm and measured in what he said? Mr N has not provided an affidavit in this regard. What I do know was that he was concerned enough to contact the mother, who in turn contacted police, who apparently have taken no formal action in respect of the matter.
In all these circumstances, although Mr Lacara’s actions were stupid and open to censure, I do not consider they call for on-going supervision of themselves. Essentially, in terms of risk to X personally, I do not consider that on-going supervision is a proportionate response to the degree of risk arising from his mental health and alcohol consumption identified by the mother. In this context, I take solace from the extensive reports provided by Doctors H and J.
However, tensions remain unacceptably high between the parties themselves. In my view, this state of affairs poses the greatest degree of risk to X’s emotional well-being. Currently, the risk of him being exposed to an unpleasant verbal altercation, between his parents, at handover, is unacceptably high.
In these circumstances, I have come to the view, regardless of Mr Lacara’s assertion that there is no supervisor available, X needs to be exchanged between the parties by a neutral person. If such a mechanism is utilised, it will not matter where the physical location of handover is.
For these reasons, I propose deleting the requirement that the father’s time with X should be subject to the supervision of an agreed supervisor at all times. There is no evidence to indicate that X has come to any harm since the implementation of this regime around ten months ago. In my view, it is appropriate that the requirement be relaxed.
I will further order that the child be exchanged to give effect to these orders, when handovers cannot occur at his kindergarten or child care, handover occur at a neutral public space to be agreed between the parties and failing agreement to be the D Shop carpark at Suburb E. Each such handover to be conducted by the mother and an agent on behalf of the father, with such agent or agents to be agreed between the parties in writing.
The problem obviously arising from this proposal is that the father asserts that there is no such person willing to perform this task from the previously agreed list of supervisors. I accept that the intervention cannot be a long term solution to the mistrust and rancour between the parties but it, in my view, represents a necessary start to get arrangements back up and running.
I would hope that there will be some agreed honest broker who could undertake this task for the next eight to ten weeks, particularly as the intervention required will be limited in the time it takes. Each of the parties needs to search out such a person for this period, at which stage, if the parties have behaved appropriately, the intervention can be revisited.
The parties also need to formalise and confine their modes of communication, concerning X. It is not appropriate for there to be multiple communications. Communications need to be succinct and respectful in tone and to take place at defined intervals. Electronic forms of communication are obviously highly efficient in getting information from one person to another instantaneously. They also have the potential, if misused, to become instruments of intimidation.
In this particular case, each of the parties needs to think carefully about precisely what they want to say to the other in writing so that their communications are concise, considered and respectful. The best mechanism for this, in my view, is the old fashioned tool of pen and paper.
I will direct that the parties exchange all necessary information between them concerning X’s parenting arrangements, including his dietary, medical and sleeping needs; any particular preferences or interests he has; and particulars of his daily routine and health, whilst in the care of each parent; by means of a communication book to be passed between them at each handover.
The dispute between the parties is their dispute not X’s. In these circumstances, I will make the usual, mutual injunction restraining each of them from denigrating or abusing the other in the presence or hearing of X or permitting any other person to do so.
In my experience, arising from my involvement in many family law disputes, electronic communications can be both a boon and a curse. Instantaneous communication is obviously a wondrous thing – information can go to one person in literally a nanosecond. However, instantaneous communication can also be used to bombard a person with invective in circumstances where there has been no proper reflection as to what information needs to be properly conveyed in the nanosecond.
Regrettably, in the heat of the moment, angry or frustrated individuals are liable to use text messages and emails to vent their frustrations. This, for obvious reasons, is not a constructive process. As such, rather than facilitating effective communication, instantaneous electronic communication has the opposite consequence for high conflict parents.
The parties, in this case, are high conflict parents. As such, they need to reflect carefully in respect of all their formal communications with one another. In these circumstances, they should only utilise electronic communications in situations of sufficient emergency to justify their use.
The pool of property available to be divided between the parties is not a large one in dollar terms. Their major asset – their former home – has been realised. In these circumstances, it is in their obvious interests to make concerted attempts, sooner rather than later, to mediate the property issues remaining between them.
This will have two obvious advantages. Firstly, it will be more financially advantageous than having the court determine the matter, if both remain legally represented. Secondly, an agreed outcome may have the potential to reduce rather than aggravate the tensions between them. In addition, a mediated outcome will leave the parties in control of their destiny to some extent. A court adjudicated outcome will not have this quality and may be a significant period of time away.
The parties previously agreed to approach Mr Burr to mediate their property issues. This was an eminently sensible suggestion. For the mediation to be successful, which would appear axiomatically to be in both party’s best interests, requires each of them to make a full and frank disclosure of relevant financial documents, as both the court’s rules and the common law mandate.
Theirs is not an unduly complicated matter nor one in which there is a marked imbalance in either financial resources or knowledge. In all these circumstances, it is not in the interests of the administration of justice that there be an order for formal discovery made.
In my view, the application in a case, in this regard, was premature and ill-considered. It served no purpose other than to aggravate the parties’ already poor relationship with one another. The application will be dismissed and no order made in respect of costs.
It is more appropriate that a direction be made requiring Mr Lacara to provide the further financial documents sought and which his counsel indicated could be easily forthcoming in the period prior to the proposed mediation.
I will allow 28 days for this. I will further direct that, in the period of the adjournment, the parties take part in a financial mediation to be conducted by a mediator to be agreed between them. The period of the adjournment will be around eight weeks.
The case can then return to court and further decisions made about its progress, particularly in regards to handover arrangements and whether the case should be fixed for final hearing and in which court that hearing should take place.
These are lengthy reasons for judgment. In my own defence, I have many constraints on my time and, as such, did not have time available to me to edit these reasons into a more concise document. I was also provided with a plethora of documents, from the parties themselves, in a context in which neither was prepared to give the other any quarter.
However, I was troubled by the case, particularly in regards to the heat of the controversy between the parties concerned and the obvious emotional distress each is feeling as it unfolds. Each of the parties is an intelligent and tertiary educated person. They each love X. As a consequence, as Ms L observes, they have much to offer X.
However, the endemic conflict between them has the potential to divide X’s loyalties and do him emotional harm, as well as the parties themselves. Litigation is neither healthy nor helpful for children or their parents.
For this reason, I elected to provide these lengthy reasons for judgment to the parties in an attempt, perhaps in vain, to reframe their attitude to the proceedings and focus each of them on a more conciliatory and empathetic approach, which perhaps may minimise potential harm to their co-parenting relationship. [30]
[30] See Family Law Act at section 69ZN
X’s life needs to be normalised. It may well be the case that he is stressed, like his parents, by their separation and the implications of the pandemic crisis. In my view, he needs to reconnect with his father sooner rather than later in a situation which avoids him being exposed to further overt conflict between his parents. On balance, I am satisfied that he will not face an unacceptable risk of coming to harm if the time is not subject to direct supervision. The parties need to focus on resolving their property issues.
If, when the matter returns to court, the parties remain in dispute and require a further court adjudication, the matter should be referred to the Family Court. This court is not equipped to deal with intense acerbic litigation, in which every point is taken and, as I say, no quarter is given. I have a large docket to manage, involving many disparate families, some of whom are grappling with significant issues of disadvantage.
As such, I must ensure that, as far as possible, each individual case is directed to where it can receive the appropriate level of case management and attention. This case may need special management to ensure that the property issues are resolved as quickly as they can be and X himself is spared being the subject of unnecessary litigation.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 18 May 2020
[4] See mother’s affidavit filed 10 March 2020 at [58] – [59]
0
7
5