Mowbray & Kaelin

[2021] FedCFamC2F 451

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mowbray & Kaelin [2021] FedCFamC2F 451

File number(s):	DGC 522 of 2015
Judgment of:	JUDGE BURCHARDT
Date of judgment:	22 November 2021
Catchwords:	FAMILY LAW – Application for summary dismissal pursuant to s 45A of the Family Law Act 1975 – father seeking orders for counselling of the 14 year old daughter – family report opining such orders likely to lead to child self-harming and/or other adverse outcomes – father clearly having no reasonable prospects of prosecuting his case – all applications dismissed.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Spencer & Commonwealth of Australia [2010] HCA 28
Division:	Division 2 Family Law
Number of paragraphs:	29
Date of last submission/s:	22 November 2021
Date of hearing:	22 November 2021
Place:	Dandenong
Solicitors for the Applicant:	Fiona McGregor Family Lawyer Pty. Ltd.
Counsel for the Applicant:	Ms McGregor of Counsel
Solicitors for the Respondent:	Patford-Smith Legal Services
Counsel for the Respondent:	Mr Moisidis of Counsel
Solicitor for the Independent Children’s Lawyer:	White Cleland Lawyers
Counsel for the Independent Children’s Lawyer	Mr Eidelson of Counsel

ORDERS

DGC 522 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MOWBRAY Applicant
AND:	MR KAELIN Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	6 DECEMBER 2021

THE COURT ORDERS THAT:

1.The order appointing the Independent Children’s Lawyer dated 23 October 2018 be discharged.

2.All extant applications are dismissed.

3.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, final orders are made in terms of the Independent Children’s Lawyer’s minutes.

THE COURT NOTES THAT:

4.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

ENGROSSED MINUTE:

THE COURT ORDERS ON A FINAL BASIS THAT:

1.All previous parenting orders be discharged.

2.The parents have equal shared parental responsibility for the children of the relationship X born in 2003, and Y born in 2007.

3.The said children live with the Mother.

4.The said children spend time with and live with the Father in accordance with their wishes.

5.The said children be at liberty to communicate with the Father at any reasonable time in accordance with their wishes.

6.The Father be at liberty to forward to the said children letters, cards and gifts at all reasonable times.

7.The Mother use her best endeavours to encourage the said children to communicate with, spend time with and live with the Father, and to support the restoration of the relationship between the said children and their Father.

8.The Father be at liberty to obtain directly from the children’s school, at his expense if any, all information that a parent would ordinarily be entitled to receive, including but not limited to school reports, photos and newsletters.

9.The Father be at liberty, upon written agreement for same received from the children, attend any school event that parents are normally welcome to attend.

10.The Mother keep the Father informed of any medical illness or injury suffered by the children requiring medical of hospital intervention, and she shall provide him with the names of any treating professional.

11.Each of the Father and Mother keep each other informed of their current mobile telephone number, email address and residential address and the residence where either of the children may at any time be living.

12.The family reports of Dr B dated 27 May 2019 and 13 October 2021 be released to the DFFH for their consideration and review in relation to that Agency’s consideration for the protective needs of the children, and in particular the protective needs of Y, in the event that she is living in a residential environment with her brother X, given the contents of the said reports.

13.Dismiss all extant proceedings.

14.Discharge the appointment of the ICL

15.S.65DA(2) and S. 62B provisions apply hereto.

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

REASONS FOR JUDGMENT

JUDGE BURCHARDT

1. The matter before the Court today is consideration pursuant to section 45A of the Family Law Act as to whether the parties and, perhaps most particularly, the father have reasonable prospects of successfully prosecuting the proceeding. It should be remembered that pursuant to section 45A(3):

   For the purposes of this section, a defence or proceedings or part of proceedings need not be:

   (a)       hopeless;  or

   (b)      bound to fail; 

   to have no reasonable prospect of success.

2. What that section means was considered by the High Court in the case of Spencer & Commonwealth of Australia [2010] HCA 28.

   That was a case considering section 31A of the Federal Court Act which is in indistinguishable terms from section 45A of the Family Law Act. In the joint judgment of French CJ and Gummow J, their Honours said at [24], a reminder:

   The exercise of powers to summarily terminate proceedings must always be attended with caution.  

3. And they went on to cite authority in support of that proposition.  And at [25] their Honours observed:

   Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success.  

4. The plurality of Hayne, Crennan, Kiefel and Bell JJ said at [51] and [52]:

   First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added).  The choice of the word “reasonable” is important.  If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this.  The English rule speaks of “no real prospect”; section 31A speaks of “no reasonable prospect”.  The two phrases convey very different meanings.

   Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”.  It will be necessary to examine further the notion of “no reasonable prospect”.  But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

5. At [58] to [60] the plurality, relevantly, continued:

   How then should the expression “no reasonable prospect” be understood?  No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content.  Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”.  The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided.  Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

   In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”.  But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by section 31A.  Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

   Rather, full weight must be given to the expression as a whole.  

6. Against that statutory background I come to the submissions for the parties, which I do propose to paraphrase briefly, albeit that not everyone regards that sort of exercise as entirely helpful.  Counsel for the mother, Ms McGregor, referred to the mother’s application and her affidavit dated 16 November 2021.  She noted that this traversed a lengthy history in this Court and the Children’s Court.  X will turn 18 in and Y was 14 this year.  They have spent little time with the father for at least 12 months and Y last saw him about 12 months ago.  The father seeks that the matter be listed for trial.  This would be, of course, in February next year in respect of Y only.  Counsel described this as an exercise in futility.

7. It was revealed before the section 11F report in 2018 that X had sexually assaulted Y, which led to protracted proceedings in the Children’s Court. The Australian Childhood Foundation had abandoned their endeavours because of an alleged refusal on the father’s part to cooperate with counselling, which he had not embraced. This has led to there being no relationship with the children and a trial would merely entrench these difficulties. There was also reference to a further childcare agency which had endeavoured to be involved but with no success. The children will not engage with the father and counsel sought the dismissal of the matter pursuant to section 45A.

8. The father’s formal position was week about, but Y will not see him.  Counsel traversed the proposed order 12 in the independent children’s lawyer’s minute and opposed that the report of Dr B be given to the Department of Fairness, Family and Housing on the basis that there was little to be obtained.  She referred to paragraph 63 of the mother’s affidavit in this regard.  She submitted there was no basis for any concern that both the children might live with the mother.  The father had filed limited material only the preceding Friday, which did not advance the matter much further.  The mother sought limited costs of the proceedings but otherwise agreed with the independent children’s lawyer’s orders. 

9. Counsel for the father opposed the summary dismissal of the matter.  He referred to authority, apparently from me, in this regard, but I suspect it is rather the same as what I introduced this matter with today.  It was submitted there were some prospects of time between the father and Y, albeit it was conceded that X will be an adult shortly.  The father’s minutes of orders sought seek a final hearing.  He also seeks the costs of both of the reports of Dr B.  The original order for the first report was that the father pay in the first instance and the second report, he conceded, however, was subject to an order that the father pay.  It was submitted that the report was scathing of the mother’s behaviour and established alienation.  The father has paid some $13,000, including about $9000 for the first report, and seeks those costs at least.

10. There are reasonable prospects of success notwithstanding that Y has scarcely seen the father for over two years.  It was submitted that one thing missing in Dr B’s report was the issue of counselling on a non-reportable basis to enable Y to cope with her lack of time with the father.  The father’s former partner, Yvette, is no longer on the scene.  Family therapy might work, but Dr B did not canvass this at all.  The second family report, it was submitted, did not disclose Y being too distressed.  The father was prepared to pay for counselling.  To explore the possibility of continuing could not be otherwise than it would be in her best interests, because time sought would still be in accordance with Y’s wishes.

11. The second matter raised was the emotional fragility and psychological fragility of Y.  There has been sexual exploitation and very little evidence as to whether any therapy has been provided.  Counsel referred to the possibility of the assistance of the Victims of Crime Tribunal which has the capacity to make extensive orders supporting counselling and funding therefrom.  It was noted that if the matter proceeds to trial then such orders could be made.  Naturally enough, counsel opposed the costs orders sought by the mother.

12. The independent children’s lawyer noted the degree of agreement between the parties as to the scope of the independent children’s lawyer’s orders.  He referred to the molestation of Y by X.  He noted a very considerable number of trial dates vacated over a considerable period of time. 

13. The report of Dr B in May 2019 sought that there be a week about arrangement which never happened.  The second report has now been prepared and counsel referred to, with particular emphasis, paragraphs 38 and 39 of those.  I will not traverse those submissions because I propose to traverse those paragraphs myself.  It was submitted Dr B has addressed the question of reunification which is what the father is seeking and the Court should not make orders which have the capacity to be either damaging or futile.  The litigation path in this case has simply been unsuccessful.

14. In a further short submission, Mr Moisidis pointed out that his client does press his order 2 which would enable him to have email and the like telephone contact with the children. 

15. The main issue obviously is whether or not this matter be listed for trial.  It is important to remember that the father says he does not seek time with Y.  He seeks, rather, that therapy be placed in position.  But I point out that, even if that order was made, the endpoint would ultimately be the same.  It would still, on his case, be time with Y in accordance with Y’s wishes.  He also seeks that there be court orders, if I understood it correctly, either compelling or facilitating an application to the Victims of Crime Tribunal.  Dr B’s second report - and bearing in mind his first one recommended equal time - notes at paragraph 1 that the last time the child X saw the father was in March 2020 and Y in September 2020 and he pointed out that both children had rejected the father entirely.

16. At paragraph 3 he noted that the mother was working full time.  And at paragraph 14 he noted there had been little time spent with the father over the last two years.  The father has seen Y twice since 2018.  At paragraph 14 he also recorded the father as speculating that this might be because the children did not want to see him, but was also possibly alienation.  The report noted deficits on the part of both parents; perhaps more particularly so on the part of the mother.  But I propose to come to certain passages of the report which I am now going to read out.  At paragraph 27 Dr B wrote:

    Y was quiet and withdrawn during consultation.  She appeared reluctant to engage in any meaningful conversation about her family.  She was adamant that it was her decision not to spend time with her father.

17. At paragraph 29 the report continued:

    Regarding the current parenting arrangements, Y said she was not in favour of any significant change to her living circumstances, nor having structured time around seeing her father.  She remarked, “I’d just leave the same.”  She did not give any indication that she was intent on reconnection with Mr Kaelin.  She said she was settled in the family home with her mother and brother and that she did not harbour ongoing fears after having been molested by X.

18. At paragraph 30 under the heading Observations the report continued:

    Observations of the children with their father were somewhat challenging.  Upon entering the observation room, there was an awkward greeting.  X was more interactive with Mr Kaelin, engaging in some tentative conversation about recent events, including his enrolment at TAFE.  Y was quiet and withdrawn.  There was little spontaneous dialogue.  Her eye contact was poor.  Mr Kaelin’s attempts to converse with her were met with minimal responses.  She appeared guarded, uncomfortable and emotionally aloof.

19. At paragraph 32, relevantly, the report continued:

    Unfortunately, given how things unfolded over the last two years or so, it is my view that the situation between the parties is now irrecoverable.  There is no reasonable prospect of improvement between them.  The situation is not likely to be aided by any professional input.  The possibility of them ever re-establishing meaningful dialogue about decisions relating to the care of the children is remote.  The lack of goodwill, trust and mutual support between Ms Mowbray and Mr Kaelin is one variable that, in my view, has contributed to these children rejecting their father.  Seldom are there instances in which children will withdraw entirely from a relationship with one parent when the co-parenting situation is functioning well.  The fact that Ms Mowbray and Mr Kaelin have very different parenting styles - with Ms Mowbray being permissive and less structured and Mr Kaelin being more proactive and formal - has also engendered the children to gravitate towards a home environment in which there are fewer boundaries, expectations and procedural and behavioural standards.

20. Paragraphs 34 and 35, the report continued:

    For Y there is also cause for significant concern.  Her attendance at school is waning.  There have been instances where she simply refuses to go to certain classes if she disagrees with a given teacher.  She is not involved in any meaningful structured extracurricular activities.  She has few friends.  She struggles socially.  Her mood and mental state as assessed during the current consultation appeared precarious.  Y does not impress as a confident, assured, outgoing, well-behaved teenager.  Rather, she is withdrawn, morose and isolated.  There is an increasingly oppositional dimension to her presentation. 

    Both X and Y are extremely vulnerable at risk young people.  I would estimate that there are likely to be significant ongoing challenges for them throughout the remainder of their teen years and into adulthood.  Not having their father involved in their upbringing over the last few years has been an enormous disadvantage to them.  Their mother, Ms Mowbray, is woefully under resourced in her capacity to manage such challenging children.  Admittedly, some of the behaviour management and disciplinary practices used within the paternal environment when X and Y were still seeing their father were less than ideal.  However, these are two children that required significant, forceful and proactive intervention.  They have not received the type of structure, boundaries and oversight that has been required when they have been in the exclusive care of their mother.  Ms Mowbray’s attitude towards parenting is underwhelming.  She is inclined to minimise the extent of the problems for her two children.  She makes excuses.  She turns a blind eye.  She is unsophisticated in her basic behaviour management strategies.  The dysfunction in these children has been able to unfold unencumbered in recent years in the care of their mother.  Regrettably, for X, there is little hope that you will be able to correct the trajectory even if Ms Mowbray were to receive significant help and make substantial adjustments to her parenting.  I suspect the same is probably true in the case of Y.

1. Paragraph 37 of the report continued:

   In terms of risk, I would not consider X and Y at any unacceptable risk in the care of their father.  The likelihood of him returning to any use of corporal punishment/physical discipline/aggressive parenting practices I would consider remote.  Rather, the greatest risk to the children is that their disturbed behaviour and compromised mental health progresses unabated in the care of their mother.  She has demonstrated a lack of awareness, insight and efficacy in dealing with the emerging dysfunction that these children have presented with over the last years.  I would also consider the input of various services with these children since I was last involved to have been insufficient and poorly coordinated.  There has also been a complete lack of implementation of any of the recommendations contained within my 2019 report.  That is, the parents have not migrated their communication across to a more structured platform such as Our Family Wizard application, they have not been undertaking a routine weekly handover to exchange information about X and Y, they have not engaged any therapeutic forum to address the difficulties within their co-parenting relationship and develop a joint set of rules/expectations/consequences/rewards for the children that apply to both households.  Ms Mowbray has not completed any sort of parenting program, nor has she received a robust intervention around how to best manage the problems for X and Y.  The children have not been compelled to live in a week about arrangement as suggested, thereby lessening the influence of their father whom I would consider to be better placed to intervene in some of the difficulties that these children present with.  The outcome of this inaction has been for the deterioration of X and Y to continue, if not worsen. 

2. Paragraph 38 then, relevantly, continues:

   In terms of any parenting arrangements that this honourable Court may consider, there are obvious questions around how reasonably practicable binding final orders for these children will be. 

   He then deals with X, but goes on:

   Y has refused to adhere to any orders that enshrine her spending time with her father.  Ms Mowbray has shown an unwillingness and incapacity to implement even existing orders.  Moreover, I hold concerns that forcing Y to change her routine at this point may engender significant and potentially dangerous consequences.  For instance, she may struggle emotionally and there may be an exacerbation of any underlying depression and anxiety.  Her resistance may create another point of confrontation, with the potential for aggressive outbursts.  She may abscond.  She may self-harm.  None of these are inevitable outcomes, although I would consider there to be a very real risk of these type of issues were the Court to make orders compelling her to live some of the time with her father, engage in reunification therapy or spend time with him on an incidental basis against her clearly expressed wishes. 

   Unfortunately, there is little that can be done in this family in order to correct the missteps that have unfolded over the last two to three years.  These children would benefit from having their father in their lives, but circumstances, inaction and poor case management has allowed the situation to progress to a point where it would be fruitless for the court to compel X and Y to reconnect with their father.  There are some instances where the damage incurred has been so substantial that it cannot be easily corrected.  This is one such instance.  The best way to proceed, in my view, is to allow both these children to self-determine the way and timing that they may one day reconnect with Mr Kaelin.

3. The report continues on and finishes in paragraph 39:

   The remedial influence that the court can reasonably achieve at this point is minimal.  It is only through Ms Mowbray and Mr Kaelin working more collaboratively together that there may be some hope of a modest normalisation in relations between the children and their father. 

4. But, of course, having made that point, one needs to remember that Dr B was of the very clear view that there is no prospect of that ever occurring.  I have not touched in detail on the parties’ two affidavits filed.  I tend to support the submissions by Ms McGregor that the father’s affidavit does not take the matter much further, although it shows very real concerns on his part, particularly perhaps at paragraphs 8 and 9 where he deposes:

   I am very concerned that if the Court does not assist with the children and continue this case, the children and, in particular, Y, will continue to decline and I note that Dr B advises that Y has suicidal thoughts.  It is, therefore, a matter of life and death for the children. 

   It may be that the children do not re-establish their relationship with me, noting Dr B’ remarks that family therapy may not work.  I accept that.  I cannot accept, however, doing nothing.  This would be a complete failure to the children.

5. As I have already said, the mother’s affidavit is a long history of the matter, very much from her own perspective, understandably enough.  But I do not think it is necessary to traverse it in any detail.  It is, of course, the case that Dr B has not been cross-examined.  And I note that the mother’s affidavit is pejorative of Dr B to a point, who has not felt it necessary to respond in any detail.  The reality is, however, that Mr Eidelson is correct.  Dr B is an exceptionally senior, experienced and well-regarded counsellor.  There is a real and present risk that the orders that the father seeks at the end of the trial is going to lead to harm to Y, firstly, and, secondly, be futile.

6. Pursuant to section 65AA of the Family Law Act, the child’s best interests are paramount. Firstly, orders for reunification in the form of family therapy has been opined by Dr B as being likely to lead to harm and to be strongly resisted by Y. In those circumstances, the notion that the Court should try to have a trial to produce that likely result speaks for itself. Second, the orders surmised as to the possibility of proceedings in the Victims of Crime Tribunal have a huge number of obvious difficulties: first of all is how is the Court going to supervise conduct in another proceeding; second, it expands and continues litigation which has been underway for this family since 2015 and which has produced this most unfortunate endpoint already. There are in these circumstances, in my view, no reasonable prospects that the father will successfully prosecute the proceeding and I do not propose to list the matter for trial but to dismiss all applications.

7. The next issue is whether the report of Dr B should be provided to the Department of Fairness, Families and Housing.  The mother opposes this.  But there is really no earthly reason not to do so.  It is clearly in Y’s best interests.  The mother’s opposition says there is little to be obtained, but I do not agree.  Dr B’ report is concerning and the Department ought to be aware of it.  I propose to make the order the independent children’s lawyer seeks.

8. The next matter is the father’s application to spend telephone time and email, in effect at his own election. In the face of the family report, that application speaks volumes for his most regrettable failure to properly understand what it is Dr B was saying. It is plainly wholly inappropriate that the father have the capacity to enter into the children’s lives unless they themselves come to the conclusion that they would like that to occur. I do not propose to make the order the father seeks.

9. That leaves the countervailing costs applications which smack to me, I must say, in each instance as having something of a Parthian shot about them. First of all, the mother seeks the costs of the proceeding, albeit in limited amount. Both parties appear to be in full-time employment, so far as I can distrain the matter from the materials. True it is, the father has been ultimately completely unsuccessful. But, in the end, this flows from a judgment which involves matters of discretion, albeit that the conclusion is guillotine-like in its effect. But the consideration of the matter is not in any sense one in which one would have said that the father’s position was captious or capricious or doomed to fail.  So I am not going to make any order in the mother’s favour.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Dated:       6 December 2021