MORA & WORLEY
[2019] FCCA 2467
•16 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORA & WORLEY | [2019] FCCA 2467 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – therapeutic engagement – coercive power. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Wardman & Ors v Macquarie Bank Limited [2019] FCCA 939 |
| Applicant: | MR MORA |
| Respondent: | MS WORLEY |
| File Number: | CAC 420 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 May 2019 |
| Date of Last Submission: | 16 May 2019 |
| Delivered at: | Canberra |
| Delivered on: | 16 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Stevens of Alliance Legal Services |
| Solicitors for the Respondent: | Mr Vozella of Bevan & Co Lawyers |
| Solicitors for the Independent Children's Lawyer: | Ms Orczykowski of Boland Legal Family lawyers |
ORDERS
Confirm the hearing dates of 29 & 30 July 2019.
In addition to any Terms of Reference previously advised to Child Dispute Services the Family Report writer is requested to specifically address what therapeutic intervention (if any) might be considered useful, desirable or necessary to assist in the reintroduction of the mother’s relationship with X (assuming that reintroduction is assessed as being in the child’s best interests as to which the Family Report writer will offer comment in accordance with the existing Terms of Reference) and, if so, what therapeutic goals might be set to be achieved as part of that intervention.
The Respondent Mother shall by close of business on 6 June 2019 file and serve a Response and notice of Risk.
Each party shall by close of business on 14 June 2019 file and serve such trial Affidavit material as they propose to rely upon.
By close of business on 14 June 2019 each of the parties and the Independent Children’s Lawyer shall confer for the purpose of identifying the material that they propose to tender at trial and an agreed list of such tenders (the agreement being as to that which is to be tendered rather than any suggestion that the tender is joint or agreed) shall be filed and served by close of business on 14 June 2019.
The Family Report writer is requested to read and consider from that which is produced to the Court on subpoena only that identified in the tender list as filed.
Pursuant to s.69ZW(1) I order and direct the NSW Department of Family and Community Services (“FACS”), ACT Child and Youth Protective Services (“CYPS”), the Australian Federal Police (“AFP”) and NSW Police Service (“NSW Police”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them for the period 6 August 2018 to date about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)X (born … 2011)
(ii)MR MORA (born … 1981)
(iii)MR WORLEY (born … 1982)
or any of them.
(b)Any notification of suspected family violence affecting the above persons or any of them;
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
FACS and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.
CYPS and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.
AFP and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.
NSW Police and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s so produced.
The parties and/or their solicitors shall not issue any subpoena directed to CYPS, FACS, AFP or NSW Police without leave of the Court.
THE COURT NOTES THAT:
A.The parties have been advised of Family Report interviews to occur 17 June 2019.
IT IS NOTED that publication of this judgment under the pseudonym Mora & Worley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 420 of 2015
| MR MORA |
Applicant
And
| MS WORLEY |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for mention and directions in anticipation of the trial fixed for 29 and 30 July 2019.
The proceedings relate to the future care arrangements for a young child X born … 2011. X will soon turn eight.
The parties to the proceedings are X’s parents, his father, Mr Mora, the applicant and his mother, Ms Worley, the respondent. An Independent Children’s Lawyer capably represents the interests of young X.
These proceedings represent the third tranche of proceedings between the parties. The parties have been in relatively continuous conflict with each other as typified and embodied by their relatively continuous litigation since March 2015 (at which time X was three years of age).
The initial Application between these parties was filed on 24 March 2015. That tranche of proceedings resolved relatively quickly. By consent, orders were made on the first return date of the matter 11 May 2015. Those orders provided for the child to live with the mother save when spending time with the father, the father’s time being delineated as each weekend from Friday afternoon to Sunday afternoon and for other periods of time.
Within a relatively short space of time after those orders were made the parties again found themselves in conflict. On 15 February 2016, a further Application was filed. The second application, like the first, was filed by the father. That is not to suggest that the application was inappropriate, merely to reflect the reality of who was the applicant.
A Response was filed in those proceedings. The matter progressed for some little time including the preparation of a Child Inclusive Conference memorandum and a Family Report.
The second tranche of proceedings was resolved by final orders made by consent on 16 June 2016. Those orders provided for young X to live with the mother and to spend time with the father in what would be, at the very least, a substantial and significant time arrangement, young X being with the father from after school Wednesday to Friday in one week and from after school Thursday to Monday in the other week.
The parties again came into dispute following certain actions by the mother. As a consequence of the mother attending upon the child’s school and uplifting the child therefrom, an application was filed by the father on 16 July 2018. As a consequence of the mother’s removal of the child from school, at a time when the child was, pursuant to the previous orders, in the father’s care, certain charges have been preferred against the mother with respect to what is styled, within the charges, as abduction.
Police located the mother after five days and after an Amber alert had been issued. The child was then removed from the mother’s care and placed with the father. The mother was arrested. The mother would appear to have remained in custody, bail refused from her arrest in July or August 2018 until a date in January 2019 when she was released on bail. The mother’s criminal proceedings have now been concluded. The mother is now at liberty.
In the early stages of this tranche of proceedings, a number of orders were made including orders made on 6 August 2018, which suspended the operation of all prior parenting orders, which provided for X to live with his father and for the mother to spend time with X under the supervision of a paternal family member. The latter order would appear to have been subsequently suspended or discharged.
As a consequence of the above actions and orders, and since August 2018, young X has spent no time and has had no commination (Communication?) with his mother.
The matter is listed for trial on future dates. The parties have each addressed, as has the Independent Children’s Lawyer, the forensic preparation of the matter. The parties have also gone so far as to discuss and reach agreement as to a proposed therapeutic engagement of the child with a nominated therapist. The parties have entered into terms of settlement which would provide for orders to be made compelling both parents and the child to participate in what is described as a therapeutic process.
I do not propose to make those orders. That is no criticism of the parties or their legal representatives but, for reasons which I will articulate, albeit briefly, I am not satisfied that the orders are necessary or appropriate.
Family Report interviews have been scheduled for 17 June 2019.
It is submitted that a Family Report writer may not possess all requisite skills to address the issues in these proceedings. More importantly, it is submitted that the completion of a Family Report at this time, when the child has spent no time with the mother for something verging upon 10 months and in excess of that period by the time the interviews will occur, may lead to certain difficulties in the report. Certainly, there is the potential that there will be some prejudice to the mother who is the person who has not seen the child for that period.
Why the child has not seen the mother for that period is not entirely clear from that which is presently before the Court, but again there is no need for the parties to have placed abundant material before the Court.
During the course of dealing with the matter today, it was indicated that a referral was made in relation to the child by a Child Welfare Agency. The child was referred for trauma counselling.
It would not appear to be an allegation in these proceedings that the child is traumatised or was traumatised because of, or in response to, the mother’s retention of the child. Accordingly, it is thankful that the trauma counselling to which the child was referred has not occurred. It would seem somewhat pointless, if not ironic or, perhaps verging upon abusive of the child, to engage the child in a process to assist them with trauma when it is not suggested the child has trauma to address.
The proceedings also are plagued by a number of procedural difficulties. Although the Federal Circuit Court Act and Rules make clear[1] that this Court is required to operate with as little formality and legal technicality and form as is appropriate, that can never obviate against due process and necessary and sufficient process to permit judicial determination of controversy.
[1] Section 42 Federal Circuit Court Of Australia Act 1999 and Federal Circuit Court Rules 2001 Rule 1.03
At this point in time, the Application that is before the Court, made by the father, is for the child to spend no time with the mother. There is not yet a Response by the mother. Again, that is not raised as criticism. In light of the difficulties that the mother has faced in her involvement with the criminal justice system that is explicable of itself let alone the difficulties that might then have been apprehended by her in framing appropriate relief.
The case will progress to a hearing, although the parties have suggested that it is possible that it is “too soon” and that unless and until the mother is reintroduced to the child and appropriate evidence obtained, of a therapeutic nature, as to how that might occur, that there will be a difficulty in the Court fully and properly addressing the child’s best interest.
With respect to the above matters I am conscience of a number of factors. Firstly, if the trial dates are vacated the matter will not likely be heard before the second part of 2020. Thus, I must balance the potential, as would appear to be relatively common ground amongst the legal representatives and the Independent Children’s Lawyer, of difficulties with evidence and forensic preparation against that further and significant delay. X would be, in all probability, be or be approaching his ninth birthday before the matter could then be heard. This means that the child will have been “in the system”, as it were for six years or two thirds of his life.
I must balance these matters against a consideration of that which is necessary to do justice between the parties but, more importantly, I must identify and appropriately respond to the child’s best interests balanced against the needs and interests of the parties in the preparation of their case.
One matter, which is prominent, is the distinction between a therapeutic and a forensic process. The Court’s role, as recently discussed by Judge Dowdy in the Macquarie Bank litigation,[2] is the determination of judicial controversy. It is the Court’s role to hear and determine judicial controversy, nothing more nothing less. That requires forensic preparation. At times that preparation, of necessity, involves, in this jurisdiction, children being brought into the proceedings as it were. In this case that involvement would be in at least two ways; firstly, the appointment of the Independent Children’s Lawyer (to ensure that this child’s best interests are properly represented before the Court rather than leaving the divergent views of the parents as to the child’s best interests to be prosecuted between them in an adversarial system) and, secondly, through preparation of a Family Report.
[2] Wardman & Ors v Macquarie Bank Limited [2019] FCCA 939
Whilst the minute of order proposing therapy has not been sighted there are real concerns, based upon the intended purpose of seeking to reintroduce the child to the mother and to then determine how that might occur. The concerns in that regard are numerous but commencing with the most prominent.
It is confirmed that the father’s case, at this point, remains as set out in his Amended Application, that the mother have no time. Thus there is potentially mischief, if not trauma, visited upon the child in seeking to therapeutically reintroduce the child to the mother or exploring how that relationship might progress, if the case that is to be pressed by the father, in only seven or eight weeks hence, is that all practice of relationship should be terminated. Why one would take the step without the decision first being made as to whether the relationship should occur? The answer is unclear.
I concur with that submitted by each of the parties and the Independent Children’s Lawyer, that some evidence is needed as to how one might now move on from the circumstance that has developed. The child predominately lived with the mother until July/August 2018. The child has now experienced a complete termination and cessation of practice of relationship. The task is now to assess a future arrangement for the child that is in his best interests. That will require some input and insight from a social scientist, whether a therapist in private practice, a Family Consultant employed by the Court or otherwise. But the fundamental question is not how that might progress but, on the applications presently before the Court, whether that should progress.
It is the father’s case that there be no time. That is not to suggest that a determination is made that the father’s position is correct. It may well be that this position, from the father’s prospective, let alone the Court’s, changes. But unless and until such time as that change in position occurs, really what is required is forensic evidence to address the fundamental underlying proposition of should the relationship resume before one is troubled by the proposition of how is should progress. Until the first question is answered in the affirmative there is no other question to answer.
Secondly, the difficulty with the suggested therapeutic purpose, if it might be so described, going beyond the reintroduction of the child with the mother lies in the absence of factual basis, a substratum of common agreed fact, that would warrant such an intervention. It is not suggested that the child is traumatised.
The child last saw the mother when he was or was about to be seven years of age. He could well be assumed, indeed, the two sets of orders made in the earlier tranches of proceedings must support such an assumption until evidence clearly demonstrates to the contrary, that the child has a well-developed relationship with the mother. Whether that relationship was attended by difficulties as a consequence of underlying premorbidities possessed by the mother and as referred to in the father’s evidence, or not, need not concern the Court at this stage. Clearly, the child would remember who his mother is.
It is suggested that there needs to be some expert evidence as to how a reintroduction of time would occur. That submission would appear to be somewhat misplaced especially as the case the father presents is “should”. The child is not suggested to have been directly harmed by the mother, emotionally traumatised or to have an absence of memory of his mother. Thus, reintroduction could simply occur by them passing in the street. The child would recognise the mother and the mother would recognise the child.
I do not suggest that one should simply thrust the two into a room with each other to reintroduce them. It may well be that the child has, if not traumatised as a consequence of past events, some hesitation, some reluctance, some concern, embarrassment or otherwise with respect to a resumption of the relationship, whether founded in his experience of the mother, his experience of the absence of practice of relationship or his experience of the father or others. Much has gone on in this child’s life.
I am conscious, as section 11E of the Act dictates, that the Court should, indeed must, consider obtaining advice from a Family Consultant about what interventions might be necessary, useful or desirable. That is the very purpose of the provision. The Court is ill placed to make decisions as to what therapeutic intervention a child requires without such assistance. Whilst such advice is not the predominate purpose of the Family Consultancy intervention that is shortly to occur it is a purpose. The predominant purpose of the report is forensic; to obtain evidence and provide assessment to enable the Court to make a decision as to what is in the child’s best interests, including by answer of the fundamental question “should the child have a relationship with the mother?” However, such guidance as section 11E can also be addressed.
It must be remembered that the Court exercises coercive power. The Court is an instrument of executive government, the judicial branch of executive government. As is contained in solicitors and barristers rules, the Court’s coercive jurisdiction should not be lightly invoked.
I pause to observe that these comment are not directed at the legal representatives of the parties or the Independent Children’s Lawyer as a criticism. I merely observe the importance of treading lightly when the Court uses its coercive power to compel engagement with a service.
I would be loath to engage this child, through the Court’s coercive control, in a therapeutic process that does not have clearly established therapeutic goals to achieve or therapeutic goals that are agreed between the parties. It is concerning, for example, that a referral to trauma counselling was made by a Child Welfare Agency when it would appear to be common ground that the child has not experienced trauma. It would be as meaningless as referring the child for sexual assault counselling when it is agreed the child has not been sexually assaulted. It is, at best, mischievous, at worst abusive of the child. Again, thankfully, that engagement did not occur.
At this point in time I make clear that the mother’s resumption of the relationship is not determined by this Court as contrary to the child’s best interests. It may ultimately be so found following hearing and the presentation and testing of evidence. It may be found to be abundantly consistent with this child’s best interests. The child has, after all, the purpose of having recited the previous tranches of proceedings, had a significant engagement with his mother, he has lived with her. That does not mean that changes may not occur but I am loath, at this point and without the evidenced being properly and fully before the Court, to pathologise the dispute between the parents.
Certainly the mother has engaged in behaviour, in terms of the child’s removal from school and retention for a period of five days, that is, at best, from the mother’s perspective let alone the Court’s, ill-advised and perhaps suggesting some lack of insight. Whether that is tempered by some underlying mental health disorder or illness on the mother’s part, drug or alcohol abuse issues, (which certainly seem to have been raised since the first tranche of the proceedings), or a combination of those factors or others cannot be determined. All that is known is that the removal occurred and the mother and indeed young X have paid a heavy price, those events having significantly impacted their relationship and terminated the practice of that relationship for some months.
The decision must first be made as to whether the relationship resumes. The parties have not been able to reach that agreement between themselves. Thus the Court must do so and one would think as quickly as is appropriate. Bearing in mind that there are already hearing dates allocated that can be achieved in a matter of weeks. That is preferable to inflicting further delay.
Even if that were not so, I would have real concern as to the child’s engagement with a therapeutic process that did not have clear and specific therapeutic purpose and goals established. That is especially so when the only therapeutic goal that could be appropriately inferred is the child’s re-engagement with the mother in circumstances where the Court is advised that the father’s position remains, at least as at today and until receiving some further advice and assistance, that no time occur.
The other alternative is that both processes happen in combination or perhaps that the therapeutic intervention happens before the report. But, again, the problems are a repetition of what is set out above. Until such time as the determination is made that a relationship should now resume there is nothing to be done as regards to therapeutic engagement to support that reintroduction.
The Family Consultant will be in a position to give advice, both as to the reintroduction and its advisability, by reference to the child’s best interests as part of the section 62G report process. The report can also advise the best process or intervention that would then support further and assist that reintroduction of time and development of relationship if it is to occur.
To order this additional intervention, at this point in time, would, I am satisfied, have the potential to fall within the domain of what is often referred to, perhaps an overstatement in the context of this case, as systems abuse. To make the orders the parties seek would be to have the Court compel the child’s intervention with a psychologist or similar professional when the evidence could not be said to support that step being in the child’s best interests.
Accordingly and for those reasons Orders are made as follows.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 9 September 2019
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