Olivier and Olivier (No. 3)

[2018] FamCA 1001

FAMILY COURT OF AUSTRALIA

OLIVIER & OLIVIER (NO. 3) [2018] FamCA 1001

FAMILY LAW – CHILDREN – interim proceedings – application of Rice v Asplund – where contended that Court did not have all relevant material before it at previous instance – alleged deficiencies in Family Report – discussion of decision-making on an interim basis – application dismissed.   

Family Law Act 1975 (Cth)

Goode v Goode (2006) 206 FLR 212
M v M (1988) 166 CLR 69
Marvel v Marvel (2010) 43 Fam LR 348
MRR v GR (2010) 240 CLR 461
Rice v Asplund [1978] FamCA 84

APPLICANT: Mr Olivier

RESPONDENT: Ms Olivier

INDEPENDENT CHILDREN’S LAWYER: Ms L McGregor

FILE NUMBER: CAC 1245 of 2017

DATE DELIVERED: 26 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The Father's Application in a Case filed 18 June 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olivier & Olivier (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1245 of 2017

Mr Olivier

Applicant

And

Ms Olivier

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an interim determination of proceedings between the applicant, Mr Olivier and the respondent, Ms Olivier concerning their three children E, eleven years old, F, seven years old and G, who is four years old.  The current application made by the Father follows a previous interim determination of the living arrangements for the children. 

2. The orders sought by the parties are extracted at Annexure 1.  Essentially the Father seeks a change in orders that provide that if the parties no longer share a house that the children will live primarily with the Mother.  The Mother seeks the dismissal of the Father’s application.

3. The Father relied upon the following:

   a)Application in a Case filed 18 June 2018;

   b)Affidavit of Mr Olivier filed 18 June 2018; and

   c)Affidavit of Mr Olivier filed 16 November 2018.

4. The Mother relied upon the following:

   d)Response to an Application in a Case filed 8 August 2018; and

   e)Affidavit of Ms Olivier filed 8 August 2018.

5. It is necessary to set out the litigation history.

6. The parties’ first appearance in Court was on 1 August 2017.  This resulted in an arrangement whereby the Father had the children live with him four nights per week, the Mother three nights per week.

7. On 28 September 2017 there was a change in orders that provided that the children would live with the Father and spend supervised time with the Mother. 

8. In October 2017 the Mother commenced taking medication directed to her mental health and also commenced living in the home that the Father occupied with the children.  She saw the children on a supervised basis through this arrangement.  After a few months the Father says that this transitioned to periods of unsupervised time.

9. Ultimately on 3 May 2017 the current orders were made.  The parties remained living under the one roof, although separated.  The orders provided that they would spend time with the children as agreed but that failing agreement (that is contingent on the event that the parties ceased to live under the one roof) that they would live with the Mother and have three nights per fortnight with the Father.  The effect of this current structure of orders was that it removed the notion that the Mother's time with the children was contingent upon her deciding to remain in the home with the Father.  The current orders mean that she is free to move out in the knowledge that she will have primary care.  It reduces the notion that the Mother might be subject to coercion or manipulation in living with the Father because of the arrangements with the children.  In making this observation I do not suggest that such a finding has been made, nor that a finding has been made that the Father has in fact coerced or manipulated the Mother through the children.  The history of the parties in relation to these arrangements supports contradictory explanations for how they have come to share the children under the one roof.  While it may be open to conclude that it forms a means by which the Father is able to subject the Mother to manipulation, it could simply be the result of the Father, who must be observed to have previously had orders completely in his favour, doing his best to ameliorate the adverse impact of those orders on the Mother and doing the best that he could to support their relationship with their Mother, and hence providing for the Mother to be able to share the residence and spend further time with the children.

10. Following the making of the current orders in May the Father filed an Application in a Case on 18 June 2018, along with the supporting affidavit.  He filed, and was given permission to rely upon, a further affidavit in November 2018.  Directions were made to set the matter down for hearing and by the time of that hearing there was one substantive change to the previous orders sought by the Father.  This change was that if the contingency of the parents ceasing to share the same residence arose, then the arrangements for the children would be a 50-50 or close to 50-50 split in time, rather than the currently provided for 11-3 split to the Mother.

11. Although of limited application in interim proceedings, the Father was directed to the authority of Rice v Asplund,[1] as potentially being applicable in the context of an application made shortly after the making of previous orders.  He was pointed to the need to show a justification for a departure from the current orders that were made following a contested interim hearing.  Of the matters set out in Rice v Asplund, the Father settled upon the justification of the revisiting of the proceedings being based on the Court being apprised of material that was not available to it on the previous occasion.

    [1] [1978] FamCA 84.

12. The material identified by the Father related to the single expert report of Dr C, to which the parties were given reasonably short access prior to the previous hearing.  The Father says that he was unable at the time of the previous hearing to identify and answer deficiencies in Dr C's report, given the short notice.  Having heard that complaint from him at the time of the previous hearing and having now seen the answering material that he has produced I accept that was so.  The Father is therefore to be given the opportunity to argue his case and present such material in order to seek to establish that such material provides a justification for departure from the previous orders that were made.

13. Without descending into full detail the Father made a thorough factual critique of Dr C's report.  He identified potential mistakes made by her and contentious facts relied upon by her and occasions where she identified factual assertions that the Father was not asked his version about.  He also pointed to an asserted deficit in her report, being the failure to identify the facts upon which she based each opinion.

14. It may be observed that if there is an absence of connection of expertise to facts, then there will be no application of relevant opinion to relevant facts and therefore no relevance of the evidence in either a final or an interim hearing.

15. It may also be acknowledged, as the Father observed, that when it comes to assessing opinion, the reliance on bad base information leads to a bad opinion.

16. However, I am not persuaded at this stage of the proceedings that it is the case either that there is no connection to expertise, nor that the bulk of the base is necessarily bad.  This is not the same as being able to be satisfied that it is good, but is a recognition of the limitation of interim proceedings.  It may be that on the close analysis afforded by final hearing that such a conclusion is reached, but, at present, there appears to be reasoned connections between expertise and facts (although those facts are contentious and unable to be resolved at this point) and the opinion offered, particularly in relation to the issue of key significance in the interim proceedings as identified in the judgment of 3 May 2018 as it relates to the order which is the focus of the Father's application.

17. The issue that was of key significance to the matter that the Father agitates, being what are to be the contingent arrangements for the children should there be an end of the current sharing of residence, is contained at [16] and [17] of the previous judgment.  The matter identified by Dr C related to the potential of psychological harm to the children due to alleged parenting deficiencies on the part of the Father.

18. The question that arises is whether the fresh matters raised by the Father in relation to the report warrants a revisiting of the orders such as to effect a change in the contingent orders.  The matter addressed by Dr C appears at [267] through [272] of her report.  Her findings of parenting deficiency on the part of the Father and the risk that flows from that are reliant upon a number of matters:

    f)The finding by Dr C that the Father has been abusive, manipulative and controlling;

    g)The findings by Dr C regarding the Father's parenting skills, communication skills, life skills, social supports, isolation and reluctance to access support; and

    h)The application of a tool to the base findings that was not formulated to deal with assessing risk being the FSNA (although Dr C’s opinion was that such an application was nevertheless open to her ).

19. It may be observed that each of these matters advanced by Dr C is contentious and the Father presents very good reason as to why the conclusions relied upon by Dr C may be wrong and thereby the end conclusions by which she formulated her ultimate opinions may also be wrong.

20. As noted in the judgment, and reiterated in the proceedings, the interim nature of the proceedings limits the factual conclusions that are available to form the basis of an interim decision (see for example, Goode v Goode[2] and Marvel v Marvel).[3]  However, such limits do not remove the obligation, in determining orders in the best interests of the children, to weigh risk (as with the approach in M & M,[4] regarding sexual abuse allegations) as noted in Marvel (affirming SS & AH) observing there being little choice, at times ‘than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected’.[5]

    [2] (2006) 206 FLR 212.

    [3] (2010) 43 Fam LR 348.

    [4] (1988) 166 CLR 69.

    [5] (2010) 43 Fam LR 348 at 376.

21. Here, as at the time of the original hearing, Dr C's conclusions regarding the risks posed by the Father in this respect are controversial, may be found to be groundless at the final hearing, but if accurate and un-acted upon, expose the children to psychological harm with the Father.  This was addressed in the previous judgment by balancing the time that they would spend with the Father in the event of a breakdown of the current arrangements.

22. That is, the matters raised by the Father emphasise the caution I expressed regarding Dr C at the previous hearing, but do not alter the mix sufficiently to cause a revisiting of the matter.

23. I am fortified in the conclusion that there is not sufficient cause to revisit the matter in order to consider 50-50 orders, on the material presented to me that the Father currently lives in J Town (if he is not co-residing with the Mother), the Mother lives in Canberra, the children attend school in Canberra and that on the Father's proposal he would need to secure temporary accommodation each week for himself and the children.  While he points to the fact that the children and he had done this before, I am unable to be satisfied that such an arrangement is reasonably practicable (or would be in whatever circumstances confront the family should the contingency arise).  Absent such a satisfaction, in a case where there is an order for equal shared parental responsibility, I would be precluded from making an order for equal time as sought by the Father in accordance with the matters set out in MRR & GR.[6] 

    [6] (2010) 240 CLR 461.

24. It is important to add that this case is reflective of the inadequacies that surround interim decision-making and the incapacity to make findings of fact.  Interim hearings are meant to be a temporary resolution to safeguard children's best interests on a limited basis pending final hearing.  However, in the current circumstances faced by this Court and the Federal Circuit Court, to describe such orders as temporary understates their importance and the longevity that attaches to them as people wait one, or two, or more years to resolve their cases.  This is the product of a system deprived of the resources necessary to deliver prompt and accurate justice in order to protect the best interests of children.

25. In this case there are serious issues that require resolution, and that point in different directions as to what will ultimately be in the children's best interests.  However, a lack of resources imposes a temporary fix on limited factual conclusions to sit in place for an unacceptably extended period. 

26. The Father’s application in a case is dismissed and the matter will be returned to the Registrar’s list pending the opportunity to allocate a final hearing, or some other interim application being made.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 November 2018.

Associate:

Date:  26 November 2018

Annexure 1

Orders Sought – Applicant Father[7]

[7] Application in a Case filed 18 June 2018

1. The parents have shared parental responsibility.

2. That the children spend time with each parent as agreed.

3. In default of agreement the children spend equal time with each parent either as:

   a)Week with the Father from 3 pm Friday to 3 pm Friday followed by a week with the Mother; or

   b)3 ½ days with each parent per week starting with the Mother at 8 pm Monday then changing to the Father at 8 am Friday.

4. The Mother will not decrease her dose of Risperidone beyond 0.25mg/day without written agreement of the Father. 

Orders Sought – Respondent Mother[8]

[8] Response to an Application in a Case filed 4 August 2018

1. The Husband’s application be dismissed.

2. That within 21 days the Independent Children’s Lawyer write to Dr C with an agreed list of incorrect facts contained in her report dated 3 April 2018 and ask Dr C if the factual errors make any significant difference to her final recommendations.

3. Within 30 days the parties and the Independent Children’s Lawyer attend a Family Dispute Resolution Conference at the ACT Legal Aid Office to attempt to resolve the dispute.