Penny & Brant
[2022] FedCFamC1F 802
Federal Circuit and Family Court of Australia
(DIVISION 1)
Penny & Brant [2022] FedCFamC1F 802
File number(s): ROC 592 of 2014 Judgment of: BAUMANN J Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where the children have not spent any time with the father over three months – Where the Independent Children’s Lawyer and the mother oppose any time occurring – Where the Court regards an interim no time order contrary to the best interests of the children – Orders made for supervised time and an expedited trial in four months Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 27 September 2022 Place: Brisbane Solicitor for the Applicant: Rockhampton Family Law Practice Counsel for the Respondent: Mr Bunning Solicitor for the Respondent: Wilsons The Family Lawyers Counsel for the Independent Children's Lawyer: Mrs Bassano Independent Children’s Lawyer: Lyrene Wiid Lawyer & Migration Agent ORDERS
ROC 592 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PENNY
Applicant
AND: MR BRANT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
27 SEPTEMBER 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That interim orders are to be considered at the next Court event.
2.That within twenty four (24) hours, the Independent Children’s Lawyer seek to engage with Mr B to determine whether she supports Mr B being a supervisor to the father’s time with the children, X born 2009, Y born 2010 and Z born 2013 (“the children”).
3.That pursuant to s 121 of the Family Law Act 1975 (Cth), the father be at liberty to provide to Mr B a copy of the family report of Dr C dated 21 June 2022.
4.That these proceedings be adjourned for further Hearing at 9.30am on 29 September 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
5.That all parties have leave to appear by telephone on 29 September 2022 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 on 29 September 2022; or
b.They shall each telephone … by 9.25am on 29 September 2022;
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.
IT IS NOTED:
A.That at the Hearing on 29 September 2022, Mr B may be required.
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 Penny & Brant 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:
The Application before me today is a Review Application seeking to review an Order made by a Senior Judicial Registrar on 2 September 2022. I have had the benefit today, in this hearing de novo, of submissions from Mrs Bassano of Counsel for the Independent Children’s Lawyer, Ms Maitland, a solicitor advocate of some competence on behalf of the mother, and Mr Bunning of Counsel on behalf of the father. The competing proposals have been identified earlier on the transcript.
The father’s primary proposal is to return to Orders made by Judge Demack on 27 May 2020, which, in effect, provided for the parties to have equal shared parental responsibility and for the three children, X, now aged thirteen years, Y, soon to turn twelve years, and Z, now nine years of age, to live with the mother and to spend time with the father in alternate weeks from Wednesday until Monday, together with half of the school holidays and special days.
I am told and accept, although I have not read any Reasons for Judgment of Judge Demack made in May 2020, that those Orders reflected the best interests of the children in the view of her Honour and bearing in mind what was by then six years of conflict post-separation between these parents. To make the observation that Z, Y and X had been exposed to such unrelenting parental conflict is to state the obvious. The effect on the children by their parents’ inability to retain good parental behaviour all the time is a matter for trial. However, what is apparent from the history is that, in January 2021, the mother filed an Application in the Federal Circuit Court, as it then was, including an Application for recovery order. I assume, therefore, that the father had held the children over.
By 16 February 2021, Judge Demack made Orders that the children return to the mother and to return to the Orders that she made on a final basis after a trial, on 27 May 2020. There is no evidence that those Orders were, after returning the children to the mother, not complied with, such that, on 25 October 2021, Judge Demack dismissed all Applications.
The next event in this unfortunate history of conflict involving these three precious boys is that, on 6 December 2021, the mother again filed an Application, seeking similar orders to that set out in the 28 January 2021 Application. There were skirmishes over Christmas arrangements referred to in the material, and the father responded to the mother’s Application by seeking its dismissal.
On 15 February 2022, her Honour Judge Demack dealt with interim Applications. Although I have not had the benefit of any published Reasons delivered by her Honour ex tempore, for the Orders she made on 23 February 2022, I do have a copy of submissions made by Senior Counsel for the husband, Mr F. I can, I think, reasonably infer from the Orders made by her Honour on 23 February 2022 that any interim Applications to vary her Honour’s Orders (the final Orders made 27 May 2020) were dismissed. That is, in my view, implicit from Order 1 made by her Honour, 23 February 2022, when she ordered that her earlier Orders “remain in full force and effect”.
No doubt, I should also see her Honour’s Order as a reflection that she did not, if she contemplated, as I am sure she did, regard the principles of Rice & Asplund (1979) FLC 90-725 to be an impediment to the matter being effectively reopened. That is reflected by the fact that on that same day her Honour appointed an Independent Children’s Lawyer and transferred the matter to Division 1 of the Federal Circuit and Family Court of Australia, as the Family Court of Australia had then become. After Judge Demack transferred the matter, the next major event was the production of a family report by Dr C, a highly experienced Psychologist in the City D area.
The report, which is relied upon, in fact, and referred to all parties today, arose from interviews conducted by Dr C on 19 May 2022. She had significant material provided to her, including evidence the parties relied upon at the interim hearing before Judge Demack. It is not necessary to refer to all the aspects of the opinions expressed by Dr C, other than to express at least a concern that the robust determination that the father:
189. …has perpetrated a pattern of severe coercive controlling psychological and social violence and abuse directly, indirectly towards [Ms Penny] during their relationship and escalating since their separation
and further that the father:
190. …appears to have deliberately acted to undermine [Ms Penny]’s authority as a parent by influencing the children to view and describe the mother’s attempts to set, maintain boundaries, to enforce consequences and discipline them for unacceptable behaviour as being abusive”
are opinions which are formed on disputed facts. I do not, as Mr Bunning suggests, accept, on an interim basis, that there is no evidence that would support those views expressed. The tender documents to which I have been referred provide some.
However, that evidence is disputed and must be tested. In this case, surprisingly, in a sense, one of the arguments advanced by the father is that some of the official behaviour of police and department officers is influenced by a relationship the mother may have with those officers. That is a very serious allegation, and if it is not proved, it may say more about the person making the allegation than the person to whom the allegation was directed, but, nonetheless, they are triable matters. All it really does is again underline that, on an interim basis, the Court must be cautious about making findings. That is not a caution which, of course, must be observed by a report writer, although one would expect a report writer to at least accept that where there are disputed facts, it will only be the Court who can determine the facts after proper testing of the evidence.
Although the father’s proposition for return to the earlier Orders is strongly asserted by his Counsel, I am not persuaded, on an interim basis, that I should, to the extent that Mr Bunning so eloquently submitted, accept that there is nothing to suggest there is some potential psychological risk to the children. It is a matter for the Court at the final trial. However, the reason why my exchanges with Counsel for the Independent Children’s Lawyer and the solicitor for the mother were directed towards supervisory conditions is that the law is clear. If a risk on an interim basis is determined as a possibility, then the Court’s attention must be directed to whether there are conditions that can be imposed which will ameliorate that risk. So much is required by the assertion that greater weight must be given to the risk under s 60CC(2)(b) of the Family Law Act 1975 (Cth).
In this case, what does not appear to be disputed is that these boys adore their father and had a history of over two years of substantial and significant unsupervised time with him before the events of mid-2022 interrupted that equilibrium, and that even though Dr C, at paragraph 198 of her report, recommends that “limited weight be given to their wishes”, the wishes to which she appears to be referring to is the children’s wish that they live with their father. The father does not today assert, on an interim basis, there should be a change of residence so that the children live primarily with him. I am satisfied, as best I can on the evidence I have got, that the mother is aware, and I accept the children have expressed, that they wish to maintain a relationship with their father.
The no time Orders which were made effectively by suspending the earlier Orders by the Senior Judicial Registrar made 30 June 2022, in the circumstances of a Temporary Assessment Order, then in place for some seven days, and then as a result of the Orders made by the Senior Judicial Registrar, has, by Court order, effectively removed the children’s opportunity to spend any time with the father for now over three months. The alternate proposals of the father, in my view, deserve very careful consideration. The Independent Children’s Lawyer and the mother oppose any time occurring. In my view, a proper weighing of the primary considerations and of the asserted psychological and emotional risks that the father, which he denies, is said to pose these children, requires time to occur, if possible, but supervised.
We are easily satisfied in major cities in this country that one can go to a local community contact centre and hopefully get an opportunity to spend regular time at such centre in close proximity to where people live. I am aware that this family live now, as it seems they always have lived, in a rural town of E Town, some hours’ drive from City D. I would not regard, unless it is the only alternative, that supervision at the City D Children Contact Centre is optimal for the children. They would be required, and the parents would be required, to undertake several hours’ travel for perhaps no more than two hours contact. In my view, before I adopted that proposal, I would want to be satisfied that the alternative proposal which remains on the table from the father, namely, that an independent youth worker in the E Town area, Mr B, be appointed as supervisor, is explored.
I accept the submission of Mrs Bassano that it seems that Mr B has not seen the family report. I propose to make an order that he be provided with a copy of that report today. Lest there be any suggestion otherwise, I direct the Independent Children’s Lawyer to seek to engage with Mr B within the next 24 hours to determine a position as to whether she supports Mr B as a supervisor in this case. At the moment, the Independent Children’s Lawyer has not taken any investigative role in that regard. I appreciate the pressures on the Independent Children’s Lawyers in these difficult cases. However, it was and always has been an alternate proposal of the father, and a mere rejection of what was at least a valid proposal concerns me.
I propose to list this matter before me on Thursday morning this week, at which time I will make orders consistent with these Reasons, which, if not by consent in relation to the appointment of Mr B, I will hear submissions from the Independent Children’s Lawyer as to why Mr B is not appropriate. Let me make it clear – the Court’s intention is that these boys resume spending some time with their father. Because I have been able to arrange for an early trial of this very complex matter in City D in early 2023, I at least have some comfort that the time, though supervised, for some three months whilst only a limited time, to a balanced response to the risks which are yet to be determined.
However, I regard a no time order as contrary to the best interests of the children and refuse to make such an order as requested by the Independent Children’s Lawyer and the mother on an interim basis.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 October 2022
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