Lavigne & Gavin
[2024] FedCFamC2F 353
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lavigne & Gavin [2024] FedCFamC2F 353
File number(s): SYC 3478 of 2021 Judgment of: JUDGE HARLAND Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – practice and procedure – application to adjourn hearing for review of a Senior Judicial Registrar’s decision with respect to urgent interim parenting orders Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) r 14.07
Convention on the Rights of the Child.
Open for signature 20 November 1989. A RES 44/55 (entered into force 2 September 1990)
Cases cited: Breck & MacKellar [2021] FedCFamC1F 102
Lawson and Glenning [2021] FedCFamC2F 118
Rice & Asplund [1978] FamCA 84
Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 1 March 2024 Place: Melbourne Solicitor for the Applicant Ms Grew of Matthews Folbigg Pty Ltd Counsel for the Respondent Mr Richardson Solicitor for the Respondent Barkus Doolan Winning Solicitor for the Independent Children’s Lawyer Ms Mason of Mason Mia and Associates ORDERS
SYC 3478 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAVIN
Applicant
AND: MS LAVIGNE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.Leave is granted for the applicant to rely on their affidavit filed 26 February 2024.
2.The application for review is adjourned to 26 April 2024 at 9.30am.
3.The directions hearing on 20 March 2024 is vacated.
4.No later than 7 days prior to the application for review, the parties file and serve an affidavit no more than 20 pages and 10 annexures.
5.No later than 3 days prior to the trial date, all parties are to file and serve a case outline document and provide chambers with a copy of each party’s respective tender bundles.
6.Liberty to apply is granted for the parties and/or the independent children’s lawyer to write to chambers advising of any delay in the release of the family report and orders for filing dates and the return date for the review can be dealt with administratively.
7.The costs of this day are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE HARLAND
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application listed before me to review orders made by a Senior Judicial Registrar on 25 January 2024. The father seeks to review primarily the orders which suspended the orders of the final parenting order made in April of 2023 that provided for the father to have time with the children four nights a fortnight, and to also be able to attend the children’s schools. The matter was brought on as an urgent matter, with serious allegations of risk being raised. The Senior Judicial Registrar made orders for professionally supervised time between the father and the children, and for an updated family report and family therapy.
The father’s solicitor advocate seeks an adjournment of the review application until after the family report is available, which is expected to be released by the end of March 2024. I note that this family is fortunate in that they have sufficient resources that they have been able to procure an early family report at some considerable cost to them. It is also clear that whilst this was a matter that resolved in the first set of proceedings by consent without a final hearing, it is also a matter where there is extremely high conflict and some complex issues with respect to the children and the parents.
I have considered both the written submissions and oral submissions this morning with respect to the adjournment application. I accept the submissions made by the mother’s Counsel with respect to the importance of the overarching purpose that is set out at s190 of the Federal Circuit and Family Court of Australia Act 2021, and s191, which refers to the obligations on lawyers conducting family law proceedings:
Section 190 Overarching purpose of civil practice and procedure provisions
1.The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
a.according to law; and
b.as quickly, inexpensively and efficiently as possible.
Section 191 Parties to act consistently with the overarching purpose
1.The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
2.A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
a.take account of the duty imposed on the party by subsection (1); and
b.assist the party to comply with the duty.
I also refer to the Central Practice Direction and discuss, in particular, the two cases that I was referred to during the course of the argument with respect to the adjournment.
The Courts’ current case management pathway heavily relies on using Registrars to manage the early stages of case management and dispute resolution, and the determination of urgent listings, and the conduct of many of the interim and interlocutory hearings, which allows our Judges and Justices to conduct the more complex interim work and trial work. Part of that pathway provides the parties with the right to review a decision of a Registrar or a Senior Judicial Registrar, with such review hearing to be listed quickly, and such hearings being a hearing de novo, or a fresh hearing, where the Court is not bound by, or limited to reviewing the decision that has been made, but can consider it afresh. Rule 14.07 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 refers to the application for review being an original hearing where the Court re-hears the whole matter, and not simply a review of the decision of the original Court, and also sets out the documents that the Court can receive:
Rule 14.07 Procedure for review
1.A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
2.The court may receive as evidence:
a.any affidavit or exhibit tendered in the first hearing; or
b.with the leave of the court, any further affidavit or exhibit; or
c.the transcript (if any) of the first hearing; or
d.if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
In accordance with the notices to the profession with respect to review hearings, and the case law, where possible, the Court seeks to uphold decisions of Registrars and Senior Judicial Registrars unless there has been a clear error. Parties are discouraged from bringing review applications for strategic purposes, such as to appear before a Judge earlier than they would otherwise, or to use a hearing before a Senior Judicial Registrar as a practice run of an interim hearing. In mentioning these matters, I do not suggest that this is what is happening in this case. The issues in this case are more complex.
I accept and refer to the comments of Austin J in Breck & MacKellar [2021] FedCFamC1F 102, and in particular paragraphs 17 and 18, which makes those points about case management:
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) envisage review applications being heard and determined promptly (r 14.05(4)). It would be tantamount to the repudiation of common law principles (Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175) and the statutory demand for efficiency (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) for the Court to postpone hearing what is supposed to be an urgent interim application concerning a child.
Regardless of the contents of the family report, the opinions and recommendations within it will be untested and will not assist the resolution of any contentious issues of fact or law because conclusive findings are beyond the ambit of an interlocutory hearing.
This was a case where Austin J, quite properly in the circumstances, said that a family report would not assist with the determination of the contentious issues on an interim basis, because at an interim hearing, the Court cannot determine the contested issues of fact, and a family report is not determinative of an outcome. It is a piece of evidence, and it can take on significance, but it is also evidence that at an interlocutory stage is untested.
I was also referred to the decision of his Honour Judge Riethmuller (as he then was), in Lawson and Glenning [2021] FedCFamC2F 118, and I also adopt his comments with respect to the importance of the core principles that are set out in the Central Practice Direction and the case management principles. I also draw particular attention to paragraph 11 of that decision:
The first core principle in paragraph 3.2 of the Central Practice Direction points out the importance of prioritising the safety of the children reflecting the provisions of the Act. This is clearly what the Registrar had in mind in making the orders that she did on the occasion that the matter came before the Court. It is also apparent that the Registrar had in mind the importance of relationships between children and the parents and, for that reason, provided for a very short return date so that more detailed material could be put before the Court.
Judge Reithmuller makes the point that part of the aim of the Central Practice Directions is to prioritise the safety of children, and in the case before him, it was a matter where the application for review should not have been brought, given that a Registrar had made very short-term orders addressing risk issues.
It is also necessary to look at the circumstances of the case of Breck & MacKellar that was before Austin J. The circumstances are quite different to the case before me. That case involved a father who, for contested reasons, had had limited involvement with the children, and had filed a review of a decision which provided for him to have limited time with the children, and then the paternal grandparents had been joined as parties. One important distinguishing factor in that decision is that the father’s Counsel did not argue that there were relevant risk factors that needed to be taken into account, and, indeed, made the forensic decision not to argue that. Given those circumstances, it is well understandable why waiting for a family report would not have assisted in the determination of those disputes.
It needs to be remembered that in this case both parties place considerable reliance on the comprehensive family report that was prepared in the previous proceedings by Dr S. I refer briefly to some background in this matter. Whilst this matter was resolved by consent after that family report, it is clear that there is a considerable amount of conflict and risk involved that was present in the previous proceedings as well. It is the types of risks that go to psychological harm, as well as physical. There are four children of the relationship, W age 12, X age 11, Y age 8 and Z age six, and as is apparent from their ages, they have different developmental needs that can be challenging in an intact family.
X, is neurodivergent, and that can be very challenging for X at times in being able to regulate her emotions. It can be very challenging for the parents and siblings to manage that, because at times she has been physically violent towards her parents and siblings. It is an issue that both parents address with appropriate concern for X’s wellbeing, and the wellbeing of the other siblings as well. It is one of the matters that Dr S addressed comprehensively in her report at lines 1554 to 1566:
I have mixed views about [X]'s capacity to be separated from her mother. I think that [X] is a child who requires a high degree of continuity, structure, and predictability. She may find it difficult to be in any environment away from her home [which is the house she shares with her mother]. For example, there were reports that [X] found it difficult to be in a holiday house with her father. I do not think that this reflects on her attachment towards either parent, but is reflective of her behavioural and neurological vulnerabilities. That is, it is common for children with ADHD and behavioural dysregulation to demonstrate regressive behaviours when they are in a new or unfamiliar environment. That said, I think that [X] has a positive relationship with her father and is also able to spend several consecutive nights away from her mother in the care of her father, without significant regression or distress. However, I am strongly of the view that such time needs to be regular, predictable, and predetermined. I do not think that [X] has the capacity to cope with ad hoc, changing, or unstructured living and parenting arrangements.
Particularly, Dr S referred to X needing a high degree of certainty, structure and predictability, and where she referred to in her view that the time between the children and their parents needed to be regular, predictable and predetermined. It is apparent from the detailed consent orders that the parties entered into that that is what the parties were trying to achieve.
It is also clear from Dr S’s report that the parents have very different parenting styles, which is very common, but can be difficult to navigate. The way the case is described by each of the parties in their respective case outlines gives an indication of just how complex the dynamics are. The father frames the case pursuant to the principles in Rice & Asplund [1978] FamCA 84, where the mother has raised very similar allegations that were raised in the previous proceedings to which he refers to having been comprehensively investigated. He emphasises this case is one where the mother is trying to exclude him from the children’s lives.
The mother, in contrast, outlines concerns about risk. The material goes into great detail, that include various comments that the children have made that are troubling, and concerns particularly about the father’s ability to regulate his own emotions and appropriately deal with X in particular when she is acting out. What struck me when looking at this matter is a comment in the father’s submissions about Dr S’s report having canvassed the mother’s experience of the father as harassing and threatening, and the father’s experience of the mother as controlling and avoidant. Both things can be true at the same time.
A troubling aspect of this matter is that on the material that I have seen, from the parties’ material and the extracts annexed to their affidavits with respect to OurFamilyWizard, that the conflict between these parents and the children and the communication between the parents and the lack of effective communication is of real concern. The material indicates a continuation of the conflict without much interruption, despite the April 2023 Orders, and this raises concerns about the viability of the parents exercising equal shared parental responsibility, unless something changes about that. I also note that the first proceedings began within a month or so of the parties’ separation and involved, at one point, an investigation by Child and Protective Services.
It is also clear that what is really challenging for both parents, is they have, four very bright children who are acutely aware of the conflict between their parents and the concerns that each parent has about the other. Both the previous family report and also the parties’ most recent affidavit material show that particularly with respect to the older two girls, they have been quite demanding of the parents wanting to know what is going on in the dispute.
This can be a very challenging issue for parents to navigate, particularly when the two eldest girls, in some ways have pseudo maturity, and it would be insulting to their intelligence to simply say to them, “Do not worry. You do not need to worry about anything. The adults will take care of it”. They know that there are proceedings on foot again. They have recently attended for updated family report interviews, and it is clear that they feel very divided by loyalties, and that the separation was difficult for the parents and for the children to navigate as well.
In considering the adjournment application, I have also had the benefit of written submissions by the mother’s Counsel, which refers to a high level of anxiety that the mother is experiencing, and the impact upon her of the proceedings. From her perspective, it is argued that adjourning this matter for another hearing leaves the mother in the position of having that application hanging over her head and having the stress and uncertainty involved with respect of that, and that is not something that can be discounted.
It is striking that in the affidavit filed by the father on 27 February 2024 and in the supervised reports, it appears that in having particular regard to, the conversations between the father and the children that are set out at pages 24 and 25 of that report that the mother is in a really invidious position. On page 25 of the report, the father is quoted as referring to the rules, needing to finish the visit, and then saying, “If we behave, maybe we can change it”, with X replying and saying, “It’s mum, of course she won’t change her mind”. The mother’s concern is for the welfare of the children, and she currently has to manage the children’s resentment of her with respect to the changing parenting arrangements.
It is also necessary to make the point that children do not want to spend time with a parent in circumstances where that parent is unsafe. What is troubling, is the amount of pressure that the parents and children are under currently. Particularly, given that the father is having supervised time at the moment, the mother has to manage the children’s feelings about their resentment about that and expressions of wanting to spend more time with their father, whilst also navigating her concerns about risk. I accept that the father denies the mother’s allegations of risk and would frame it as being a risk on the mother’s side in not facilitating his relationship with the children. Certainly, this is a case where the Court has to be mindful of the serious allegations of risk that have been raised that the Court cannot test at this stage, but that were live issues in the previous proceedings as well, and addressed in some detail in the previous family report.
In most circumstances, particularly with respect to applications for review, the Court should be most reluctant to adjourn such applications for reasons as outlined in the case management principles that I have referred to, and where it is necessary to balance the resources of the Court, both with respect to the cases it has at large, as well as the individual case before it. Inevitably, if I adjourn this case today, that means that another family will have their matter delayed, because this matter will need another Court date, and another case could not be heard today. However, the case management principles are not a means to an end in itself. They are there as an aid for the administration of justice, and in parenting matters the Court has to be mindful also of children and what is in the children’s best interests.
In this matter, the Independent Children’s Lawyer (‘ICL’) has very recently been re-appointed. She was at pains to inform the Court that she had little involvement in the previous proceedings, as she took over from the first ICL, who retired. Unlike circumstances in some other cases that return to the Court, the ICL does not have the benefit of having been involved at great length with respect to the previous proceedings and involved with the children. The ICL has, to her credit, with the gratitude of certainly the Court and the parties, has read material overnight noting there is a substantial amount of material and she supports the adjournment in the circumstances of this case.
It is a somewhat finely balanced matter. I am mindful that the parties and children have participated in recent interviews for a family report, and given the amount of conflicting but concerning material about the children’s views, what they say to each parent, and the pressure they are under, it is important to be mindful of the rights of children, and that is recognised in particular Article 12 of the Convention on the Rights of the Child. One of the real dilemmas for the family law system itself is how to better ensure that children are able to be heard accurately and faithfully in proceedings.
I appreciate the mother’s concerns about the matter being adjourned for another hearing, and the stress that she feels in these circumstances. However, I am concerned, particularly having regard to some of the comments in the supervised report as I have previously indicated, that the pressure is going to be present regardless. In some ways, having an earlier date that determines the interim issues, rather than it being determined today and then there being the prospect of a new application, depending on the outcome of that report would not be beneficial. I am of the view that in order to ensure that the Court is best placed to determine what is in the best interests of the children on an interim basis, given the issues in this matter, I find that this is one of those cases that is distinguishable from the cases before Austin J and Judge Riethmuller. I will exercise my discretion to adjourn the review hearing. I am satisfied that the circumstances are exceptional, given the complexities in this matter and the complex dynamics that are reflected as I have indicated, in the report that was prepared by Dr S, that was extremely comprehensive.
I propose to adjourn the review application to 26 April 2024 at 9.30am before me. This will give the parties sufficient time to have digested the family report, and hopefully, for some of the family therapy to progress. It will also give the ICL an opportunity to make what inquiries she deems appropriate in the circumstances, including meeting with the children if she thinks that is appropriate.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of Judge Harland. Associate:
Dated: 1 March 2024