Luxton & Rodley (No 2)

[2023] FedCFamC1F 1045

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Luxton & Rodley (No 2) [2023] FedCFamC1F 1045

File number(s):	BRC 12331 of 2022
Judgment of:	BAUMANN J
Date of judgment:	2 November 2023
Catchwords:	FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where the Senior Judicial Registrar made interim Orders for the children to spend supervised time with the father – Orders made for the children to spend time with the father in graduated time regime including unsupervised time
Legislation:	Family Law Act 1975 (Cth) s 60CC
Division:	Division 1 First Instance
Number of paragraphs:	35
Date of hearing:	2 November 2023
Place:	Brisbane
Solicitor for the Applicant:	Evans Brandon Family Lawyers
Counsel for the Respondent:	Mr N McGregor
Solicitor for the Respondent:	Day Family Law Pty Ltd
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland

ORDERS

BRC 12331 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LUXTON

Applicant

AND:

MS RODLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	2 NOVEMBER 2023

UPON NOTING that the parties intend to cross-examine each other at the trial of the proceedings, and that there is an allegation of family violence between them and further noting that the parties have each been advised by the Court:

A.that pursuant to these Orders, neither party may cross-examine the other party personally;

B.that pursuant to these Orders, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

C.as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

D.that a copy of these Orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019.

2.That the children, Y born 2016 and X born 2016 (“the children”) spend time with the father as agreed between the parents in writing and as follows:

(a)On Thursday, 2 November 2023 from 3.30pm until 5.30pm, supervised by Ms B, with changeover to be effected by Ms B and/or on the mother’s behalf via an agent (such as her au pair);

(b)Commencing on Saturday, 4 November 2023 and thereafter on each alternate weekend throughout the year of 2023, on each Saturday and Sunday for four (4) hours from 1.00pm until 5.00pm, unsupervised, and with all time thereafter between the children and the father to be unsupervised.

(c)Commencing on Thursday, 9 November 2023, and on each Thursday thereafter, from 3.30pm until 5.30pm;

(d)On Sunday, 24 December 2023 (Christmas Eve) from 1.00pm until 5.00pm;

(e)Commencing on Saturday, 13 January 2024 and on each alternate weekend thereafter for the following three (3) visits i.e. a total of four (4) visits, on each Saturday and Sunday for six (6) hours from 10.00am until 4.00pm; and

(f)Commencing on Saturday, 9 March 2024 and on each alternate weekend thereafter, on each Saturday and Sunday from 9.00am until 4.00pm.

3.That unless agreed between the parents in writing, all changeovers to facilitate time pursuant to Orders 2(b) to 2(f) inclusive shall be between the parents via them engaging an agent/nominee on whom they both agree, provided the person is a responsible adult known to the children, but if not agreed, then changeovers will be effected by Ms B at the equal shared cost of the parents.

4.That the mother shall ensure the children have privacy during and throughout their communication with the father which occurs pursuant to Order 25(a)(v) of the Orders dated 13 December 2022.

5.That neither parent record the children’s communication with the other parent.

6.That by no later than 4.00pm on 22 January 2024, a joint balance sheet be filed with the Court.

7.That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am on 13 May 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

8.That these proceedings be adjourned for Case Management Hearing and the making of trial directions at 9.30am on 25 January 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

9.That all parties and their legal representatives have leave to appear by telephone on 25 January 2024 by using the Microsoft Teams conferencing system as follows:

(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am (AEST) on 25 January 2024; or

(b)They shall each telephone [phone] by 9.25am (AEST) on 25 January 2024;

(c)They shall each then enter the pass code …#; and

(d)Hold the line until the Court is ready to connect and proceed with the matter.

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 the pseudonym Luxton & Rodley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. Today, the Court was asked to consider a Review Application filed by the father against decisions made by a Senior Judicial Registrar published on 18 August 2023, the effect of which was that Orders made by a Senior Judicial Registrar on 30 December 2022, some five months after the parties finally separated, not alter.  The parties have amassed an enormous amount of paper.  That is even before the Independent Children’s Lawyer, Ms Lilley, briefed family report writer Ms C in relation to the preparation of a family report.  Ms C’s report which is before me contains nearly 200 pages.  It is hugely detailed and it is extended by the fact that Ms C, in forming her views, found it necessary to provide to the Court, a summary or a range of subpoenaed material.

2. In the course of today’s hearing, I was not invited to read that subpoenaed material.  I take on board at least that summary and analysis of Ms C of that material.

3. The effect of the Application for Review filed by the father is that I am being invited to determine an interim parenting decision on the basis of a hearing de novo.  I have had the benefit of case outlines by all parties in which they identify the material they rely upon, some of which even precedes the earlier Orders made by the Senior Judicial Registrar.  I have got the benefit of considered, thoughtful submissions from Mr Evans who appears as advocate for the father; Mr McGregor of Counsel who appears for the mother today, and Ms Lilley, the Independent Children’s Lawyer, mostly in her case outline.

4. Interim Hearings are truncated hearings.  They are not a trial.  Where there are many disputed facts, the Court is obliged to be cautious about adopting a view that may change when all the evidence is tested.  The Court is not entitled to ignore concerns raised by a parent.  A Court is not obliged to accept one parent’s view over another necessarily.  I have no doubt the parents of these two delightful twins, Y and X who were born 2016, love their children and want the best for them.  There is no doubt that the relationship between the parents deteriorated before final separation July 2022 and on one test might be said not to have improved at all.

5. It has to be said, however, that the Orders made by the Senior Judicial Registrar of 13 December 2022 which effectively provided for the children to live with the mother and for the father to have supervised time have continued without significant disruption or intervention by the Court by way of contravention enforcement or otherwise.

6. That is, in my view at least, the best example of the parents trying to work together in the interests of the children.  There has been a financial impact of supervised time, especially where initially ordered to be whole days on a Saturday and Sunday each alternate weekend, which I am satisfied reduced to approximately four hours on a Saturday and Sunday and intervening Thursday for a couple of hours after school, all supervised.  Most recently, the supervision has been conducted by Ms B, a person who operates a business in Region D called “[E Organisation]”.  She had provided a number of reports setting out how her observations of the time between the children and the father have progressed in her view.

7. Her evidence may be challenged in some ways at trial, although today neither Mr McGregor of Counsel for the mother or Mr Evans for the father or the Independent Children’s Lawyer cavilled with the broad proposition that the notes from Ms B, an independent person, reveal the children have enjoyed the time with the father; are excited when they arrive; enjoy his time during the day; are affectionate when they leave, but happily leave him to return to the love and care of their mother.  Since the Order made by the Senior Judicial Registrar, there has been fewer events of conflict that have occurred prior to those Orders – and by that, I mean much of the material before the Court was before the Senior Judicial Registrar in some form.

8. What is now available, however, are two separate forensic reports prepared at the request of the Independent Children’s Lawyer by single experts.  One by Dr F, a consultant psychiatrist, which I have read, and secondly, the very long and detailed report by Ms C.

9. As one might expect for any cross-sectional assessment of any party, certainly from a very experienced expert like Dr F, he is cautious about forming any decided view, accepting as he must that an assessment of the functioning of the mother and father is very much dependant on what facts are actually found by the court to have occurred.  There are significant differences between the mother and father’s versions of various facts.  In particular, it has to be said – and this is a topic picked up by Ms C.  The mother has formed the belief which she says (and some of her current or past medical professionals assisting her had described as quite genuine), that the father is a risk to the children.  Not only is he a risk but he is a person likely to inflict life‑threatening injury to his children and the mother.  She draws a comparison with the tragic cases relating to Ms G and Ms H.

10. She asked the Court to accept her belief that the father is of the same character; has perpetrated family violence towards her, and who would reach those levels of depravity as, sadly, the fathers of those children reached.  When a Court like this is confronted with that sort of allegation said, as Mr McGregor says, consistently by the mother to many people including sharing her beliefs with people who probably were not obliged to hear about it (but the mother chose to share), then of course the Court must be cautious.  Certainly, unlike when the matter was before the Senior Judicial Registrar when in the supervisory conditions were imposed by the Order, this Court has much more independent information than was available to her.  I have referred specifically to the two reports.

11. The report of Ms C, it seems, was likely to be confronting to the mother.

12. Certainly, that was the view taken by a judicial officer in the case management of this matter such that part of the report was redacted, and the report released but in circumstances where the mother was invited to discuss the report with her treating psychiatrist. She did so.

13. The report of Dr J (the mother’s treating psychiatrist) is before the Court.

14. As I put to Mr McGregor, counsel for the mother, a highly experienced barrister who, frankly, could not have said more to advance the position his client was urging upon the Court, a full reading of the report of Dr J – which included, clearly, a discussion with the mother after the release of the family report – in fact gives me some comfort about the current strength of the mother’s emotional stability in being able to cope with an order that she is unlikely to like and in fact, urges me not to make.  

15. In these ex tempore Reasons, I do not propose to incorporate parts of that report or the C report, but I have read them all. Authority requires the Court to consider what are the competing proposals for a matter like this at the moment.

16. The competing proposals need to be examined.  The transcript will reveal I invited the Independent Children’s Lawyer, Ms Lilley – again, a very experienced Independent Children’s Lawyer – to express to the Court, in broad terms, what her proposal at this stage was.  She indicates that she supports moving the children’s time with the father to unsupervised time.  She makes submissions that she said balanced up the concerns the mother expresses and the reason she says the children are unsafe in having unsupervised time with the father, with the benefits of the children or a more meaningful experience they have been able to enjoy to date, especially four hours each Saturday and Sunday, as the evidence of Ms B and the limitations of that time make clear. She urges the Court for urgent trial, noting that there are forensic issues that have to be determined.

17. She acknowledged that one of the concerns is how the mother would cope with moving from unsupervised to supervised time but, notwithstanding her view that this could be a challenge to the mother, Ms Lilley, the Independent Children’s Lawyer, indicated that that would not – in her submission – persuade the Court not to advance the children’s time to unsupervised time. In that regard, it is apparent that, apart from Dr J, who has been a person to whom the mother has had consultations on a regular basis, it appears that the mother has, since the release of the family report, engaged with a new psychologist.

18. Now, although criticisms of the mother are made in some of the submissions I have heard today about her propensity to move not only her health professional support but her lawyers, there are too many aspects of why people choose or seek to terminate instructions that would enable me – certainly on an interim basis – to drawn any conclusion about that issue, if event relevant. I accept that there have been different people offering different advice, either legally or health wise, at different times at the mother.

19. I make no such finding today.  But I am comforted by the fact that, apart from the support of Dr J, whose evidence I have already referred to, the mother does have a person she has selected to assist her in the next stages of this litigation, which will include a trial of the issues, and as well a trial of the financial issues, which no doubt are having an impact on these parties.

20. Mr Evans, on behalf of the father, urged the Court to move to unsupervised time. I will not recount his submissions, although they were essentially the same as those of Ms Lilley, although they did contain a number of other factors, some of which could be seen to be more of an attack on the mother than to deal with the risk issue, which I had invited to consider about the father.

21. Nonetheless, he was happy to remind the Court of the fact that the children have had good times with the father.  There is no evidence, although supervised, of any harm having come to the children, and even the events which are concerning in the material about the event involving X and the father, where she was described to be dragged through the house and the concerns the children expressed about the father at times losing his temper and yelling do not create a level of risk that Mr McGregor and Ms Lilley say should require time be suspended.

22. Notwithstanding those issues, referred to by Dr F and to which Mr McGregor has properly identified. Mr Evans on behalf of the father submitted says that the risks to the children are very low if they move to unsupervised time.  He did not press today – if he had earlier, I am not sure, but he did not press today – for change of residence, and, although I am satisfied the father indicated that he would like to spend overnight time with the children, I made it pretty clear that, if the Court was minded to order unsupervised time, it was not prepared at this stage, without the parties’ consent, to move to overnight time. Mr Evans did not strongly – with intimation from the bench – press for overnight time. I have no doubt, of course, that is the father’s hope.

23. Mr McGregor on behalf of the mother had the benefit of the last word, save for me.  Mr McGregor’s written submissions identify the concerns the mother has, the basis for those concerns, and the reason why – on an untested interim basis – the Court should elevate those concerns to an unacceptable risk of moving from supervised time to unsupervised time.

24. I do not agree with those submissions.  I do not propose, in this ex tempore reasons, to deal with every one of the issues, but I do rely upon the transcript to identify how I have explored, through the course of the interim hearing this morning, my concerns about some of the submissions and where they lead.  I do not, for example, however, entertain that this is an “alienation case.”  On the evidence I have at the moment, the mother says she has a genuine fear about the father; however, she has demonstrated for over 12 months that she has facilitated the time for the children with the father, and has not only done that, she has contributed to the cost.  They are not the elements of an “alienation case” as usually described.

25. In my final analysis, the balance between the children having a meaningful relationship with the parents and the other s 60CC(2)(b) factors be factors, namely, to protect the children from harm – which, of course, must be given weight – persuade me that, on the evidence at the moment, it will be a benefit to these children and in their best interests that they have unsupervised time with the father. Not overnight, not for holidays, but so as to enjoy more of the opportunities, which, on the evidence, I am satisfied the father can offer these children. In fact, a reading of Exhibit 1, being the notes of Ms B, make it clear that, restricted as he is mostly to the home in which he lives, these children do seem to spend a reasonable amount of their time with their father on their “tablet”. It seems to me that the father would like to expand the experiences for these children outside the home. I think he should be entitled to do so and would be in in the best interests, provided it is safe.

26. It would have been possible in this case to try and grapple with some of the other significant concerns raised.  Things like; is it be necessary for the children to be aware that the mother thinks that a bodyguard needs to be available, a bodyguard who, on at least some of the evidence, was not well-known to the mother before she engaged the person.  Why was it necessary for the mother to put into an affidavit parts of conversations that were being recorded where the father speaks to the children.  When one looks at paragraph 6 in her affidavit (for example), although I can accept that there are some comments the father ought not to have made, that must be seen within the context of over 12 months of supervised time and the frustration that involves for him.

1. I chose not to go into the issue that Mr McGregor was required to raise on his instructions about homework or medication.  The orders should make it clear, and the evidence does not suggest, at least now, that there is any dispute that these children require to be medicated and that, based on the medical advice, medication is administered every morning in the mother’s care; at the evening, in the mother’s care; and on the days that the child is in the care of the father, at around 3.30, he must administer it.  It would be, of course, a very significant concern if the father at trial shows either a lack of appreciation of the importance for the children to maintain their medication or is dismissive of the importance of it following the prescribed routine.  I am not satisfied on an interim basis that I should form that conclusion at this stage.

2. Other matters were raised during the course of the submissions.  The mother raises serious issues that the father has been stalking her.  However, it seems that upon complaint to police, the police did not decide to take up her complaint.  It is suggested by Mr Evans on behalf of the father that – no doubt so I can draw an inference supportive of what he might say is the mother’s delusional or paranoid beliefs – that the police directed her to a mental health unit.  I make no finding about that incident today.  I simply do not know any more about and whether as the mother asserts, the father has been stalking other persons, including a receptionist of a medical centre or a General Practitioner.  If those people made complaints to police – as they should have as stalking is a serious, intimidatory act of criminal behaviour under State laws – the police did not take up such complaints.

3. I am persuaded that it is in the best interests of Y and X that time move to unsupervised time.  I am persuaded that the mother, with assistance, will support that as best she can and prepare, no doubt, for a trial, which these parties apparently want.  I am not satisfied that in moving to unsupervised time, on the evidence, the children are at an unacceptable risk in the care of the father on the current evidence, but I cannot say, nor can any Court ever say, children are at no risk in any of the parent’s care.  I do not elevate the opinions of Ms C who, for the reasons she sets out in her evaluation (in particular at paragraph 751 of her report) that the mother is such a risk that an imminent change of residence was required.  The father did not press for that.  The children have been in the primary care of their mother, at least, since separation and beforehand.  If the father pursues such an application at the final hearing because he says, “when tested, the evidence will prove that is in the best interests of the children”, then so be it.  But until a final hearing, it is in the best interests of these children that they live with the mother and maintain a relationship with the father that provides more opportunities to explore the way in which that relationship can improve, through experiences.  I would order that the time continue this weekend at four hours a day on the Saturday and Sunday on the current regime, so as not to interrupt the planned arrangements.

4. Apparently, the time (as varied) occurs at the moment from 1.00pm to 5.00pm.  In my view, that period of time should continue for the rest of this year unsupervised.  I am happy for the parties to present an order as to how that is facilitated, using parties other than the mother and father at changeovers.  I accept on the evidence that Ms B, no doubt of a cost, has played a role.  There is apparently a person described as the “current au pair” who has played a role.  The parties can discuss that, and I am happy to make orders that facilitate changeovers.  It may be that the grandparents can play a role.  I see on one occasion they did so when they were facilitating a sleepover for the twins and the involvement with the cousins.  These children are lucky to have that extended family available to them.

5. The children should spend time in the Christmas period with the father.  I understand that the current regime of time would mean that some time on Christmas Eve, Sunday Christmas Eve, probably needs to be included, much as it was by the Senior Judicial Registrar in her Orders from the first visit of 2024 and for a period of two months, or, putting it another way, for at least four weekends, the time shall increase from four hours to six hours.  Thereafter, the time shall increase from six hours to between 9.00am and 4.00pm.  I regard 4.00pm as, after a long weekend, a suitable time for the children to return to the care of the mother so that they can prepare for the school day.  It is not about hours; it is about routine for the children.

6. I am concerned on the current untested evidence about how the children’s opportunity to communicate with their father by video, is being used as an evidentiary exercise in this case.  Children are entitled to their privacy when they communicate with a parent.  To the extent it has not been otherwise, unless I can be otherwise persuaded by the assembled legal talent at the bar table, I propose to order that the current video calls be unrecorded and be held in private.  Now, I appreciate there might be some technical challenges to achieve that but let me make it clear,  I do not want the children’s opportunity to speak with their father to be the subject of a forensic exercise in recording it which then finds its way into an affidavit, that is, to cease, unless Mr McGregor or Mr Evans or Ms Lilley can persuade me otherwise. Neither sought to do so.

7. There may be some other orders that need to be included in the interim orders as we move forward.  I have indicated to the parties that I propose to give this matter a trial listing before me during the month of May.  I regard it as appropriate, even though I know little about the property aspects of the matter, to have a five-day period allocated to it.  I do not agree that this is a 10-day case.  I intend to case manage this case to ensure, as the Family Law Act1975 (Cth) makes clear is the duty of a Judge, that the process of getting to the trial and conducting the trial is not a further opportunity for excessive complaint that does nothing but damage forever the relationship between the parents once the trial is over.

8. As I understand the current positions, which may alter by the time we get to trial, the mother accepts that is in the best interests of the children to maintain a relationship with their father, but is still, understandably from her perspective, concerned about the safety of the children.  The father has not yet, as I understand it, filed an application in which he adopts the recommendation of Ms C, that there be a change of residence with the moratorium or otherwise.  That will be a matter for another day, but I will start making trial directions and I will talk to the parties shortly about the further directions that may be required in that regard.

9. After the discussion referred to in the previous paragraph, I pronounced the Orders which appear at the commencement of these Reasons which I regard as being in the best interests of the children.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       8 December 2023