PROUST & CROCE

[2015] FamCA 381

FAMILY COURT OF AUSTRALIA

PROUST & CROCE [2015] FamCA 381

FAMILY LAW – CHILDREN – Final Orders – Undefended Hearing – where father failed to participate in final hearing – where children alienated from father – history of family violence – consideration of family assessment report – views of the children – need to protect children from physical and psychological harm – children live with mother who shall have sole parental responsibility – orders made permitting father to have limited written communication with children.

FAMILY LAW – COSTS – where mother seeks costs of parenting proceedings – whether father will require time to prepare for costs application – continuation of litigation and impact on children - mother’s application adjourned to earliest date.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 117

Family Law Rules 2004 (Cth) r 11.02

Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Proust

RESPONDENT: Mr Croce

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 6005 of 2012

DATE DELIVERED: 18 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 18 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Glezer Lanteri & Associates Pty Ltd

THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance Litigant In Person

Ms Brennan

SOLICITOR FOR THE INDEPENDENT                  Victoria Legal Aid

CHILDREN’S  LAWYER:            

Orders

1. That communication between the wife’s solicitors and the husband dated 13 May 2015 be Exhibit 1 in the proceedings.

2. That email communication from the husband to the Associate of Bennett J dated 11 May 2015 be Exhibit 2.

3. That the Second Amended Response to Initiating Application filed 19 February 2014 be dismissed.

4. That pursuant to rule 11.02(2) of the Family Law Rules 2004 the wife have leave to proceed on an undefended basis.

5. That the children B born … 2003 (“B”), and C born … 2001 (“C”) live with the wife.

6. The wife have sole parental responsibility for B.

7. The husband spend no time with the children unless the children wish to do so, and if so, that such time be in accordance with the children’s wishes and with the wife to facilitate same.

8. The husband be permitted to send emails to the children no more than six (6) times each calendar year and for the purpose of facilitating same, the wife shall within 14 days provide the husband with the relevant email address, with such emails first to be vetted by the wife as to the suitability of the children receiving such emails. 

9. The wife provide to the husband within 48 hours of receipt at her sole expense copies of school reports and photographs for each of the children from their separate schools.

10. That to the extent as may be required, the wife’s solicitors are authorised to immediately release to the wife the children’s passports and that thereafter they shall remain in the sole possession and care of the wife.

11. That the wife be permitted to renew the passport of the child B without consent of the husband.

12. That the order providing for the appointment of the Independent Children’s Lawyer be discharged.

13. Further consideration of the wife’s application for costs is adjourned for hearing to 9 am on 29 May 2015 NOTING that on or before 4 pm on 21 May 2015 the wife’s solicitors will forward to the husband an estimate of the costs sought by the wife on a party/party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Proust & Croce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6005 of 2012

Ms Proust

Applicant

And

Mr Croce

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The matter before me today is a parenting dispute that involves the children B (“B”) born in 2003 who is 12 years of age and C (“C”) born in 2001 who is 14 years of age.  The proceedings are supported by the Third Further Amended Initiating Application of the wife Ms Proust born in 1963 and a Second Amended Response filed by the husband born in 1967.  The proceedings have been protracted and complex.  The parties commenced their cohabitation in October 2001, were married in 2002.  Separation occurred on 14 April 2012.

2. The Court has been assisted by the submissions of Mr Glass of counsel for the wife who is present and Ms Brennan of counsel who appears for the Independent Children’s Lawyer (“ICL”).  What is notable is the absence of Mr Croce.  There is no doubt that, certainly up to a relatively recent date, Mr Croce was engaged in the proceedings.  That position is not so today.  Mr Croce is not present and has indicated, importantly, that he does not intend to be present and by email forwarded to the Associate to Bennett J of 11 May 2015, he makes it clear that he is unable to submit an affidavit in response to the applicant’s affidavits in this matter by 4 pm on 11 May 2015.  It says:-

   I understand that this matter will now proceed on an undefended basis.

3. The import and impact of the lack of engagement by Mr Croce has resonance in the orders that are being sought by the wife and either supported by the ICL or certainly with no objection namely, that the matter should proceed on an undefended basis. 

4. Reference is made to the provisions of the Family Law Rules 2004 (Cth), in particular rule 11.02 of those rules. The email communication of Mr Croce has to be seen in the context of the hearing before Bennett J on 1 May 2015.

5. That hearing was in relation to the lack of compliance in terms of the preparation of the matter for trial, understanding, as her Honour did and as she made the parties who attended on that day understand that the matter would be coming before me for hearing.  Importantly, her Honour was concerned that Mr Croce had not complied with orders for the preparation of affidavit material and that it was unlikely, at least at that point, that he would do so.  I do not propose to go into the lengthy interaction that occurred between her Honour, Mr Guest who appeared for the applicant wife, Ms Smith who appeared for the ICL and Mr Croce but, effectively, her Honour made it clear to Mr Croce that whilst the court was able to provide assistance in terms of procedural matters, it was very much a matter for Mr Croce to place his house in order.

6. He would need to file answering documents if he wished to be heard.  Clearly, he had not but he sought her Honour’s leave for that opportunity.  Again, her Honour’s final remarks made it clear to him that whilst he was given a further opportunity to comply, if he did not do so, he ran the risk of the matter proceeding in a truncated fashion, namely, that he would not be able to present evidence on his own behalf but, subject to leave could cross-examine witnesses called as part of the wife’s case and that of the ICL.

7. The more significant outcome, however, was that the matter may proceed on an undefended basis.  The orders made by her Honour on 1 May 2015 reset the affidavit timetable, confirmed that the matter was to commence today on 18 May 2015 and, importantly, extended time for compliance by the husband with paragraph 10 of orders made 24 November 2014 extended to 4 pm on Monday 11 May 2015.  That consideration of what transpired between her Honour and the parties on 1 May 2015 provides the appropriate background to the correspondence forwarded by the husband to the Court on 11 May 2015 that he was not intending to submit any affidavit material.

8. Additionally, Mr Glass has provided to me a letter dated 13 May 2015 addressed to Mr Croce, making it clear to him that the matter was likely to proceed on an undefended basis and putting him on notice that certain orders, as set out therein, would be sought.  I propose that both that letter and the communication from Mr Croce to the Court will become exhibits in the proceedings.  The annexed correspondence from the wife’s solicitors to Mr Croce, setting out the orders, also have a relevance, in that, in preparation of the proceedings, I have had the benefit and the advantage of a case outline document prepared on behalf of the wife and also on behalf of the ICL.

9. Whilst the orders sought by each in those documents are similar, they are not absolutely the same.  At the commencement of the proceedings today a minute of order has been tendered on behalf of the applicant wife which I have received on the understanding that the ICL either consents to those orders being made or, at the very least, does not speak against them.  The orders are a little different to those as set out in the outline documents in the Third Further Amended Initiating Application of the wife filed 2 April 2015, but to the extent that there is a difference, it is one that is to the benefit of the husband rather than to his detriment.

10. I raise that matter because I do not consider that there has been any procedural unfairness occasioned to the husband by the matter now proceeding in respect of a minute of order setting out terms and conditions that the husband has not been made aware of.  The essential thrust of the orders sought by the wife and now, again, supported by the ICL or, at the very least, without opposition, are such that would provide for the wife to have sole parental responsibility for B, that the husband should spend no time with the children unless the children wish to do so, that there should be some communication that the husband is permitted to engage in with the children by way of email communication and a positive obligation on the wife to provide to the husband, within 48 hours of receipt, certain school reports and photographs. Importantly, there are provisions in respect of the children’s passport generally. 

11. I am therefore satisfied that the matter should proceed on an undefended basis and that would see the Second Amended Response of the husband filed 19 February 2014 being struck out.  If I am so persuaded, orders can be made in terms of the minute of order. There are a number of affidavits that I am asked to rely upon but, given the parameters of the matter now, it seems to me that the three documents that encapsulate the matter are the trial affidavit of the wife filed on 2 April 2015 and the affidavits of the single expert family consultant, Mr D, filed both 21 January 2013 and 25 June 2014.

12. There is, notwithstanding some 14 months between the two reports annexed to the affidavits, no change in the matters raised by Mr D as being issue likely to be a relevant consideration for the Court.  I think it is fair to say, and I accept the submissions of counsel for the ICL that the report of Mr D annexed to the second affidavit sets out with some clarity the essence of the issues that should impact upon the orders that I make.

13. I have given careful consideration to the affidavit material that I have been asked to read as set out in the case outline document filed on behalf of the applicant wife.  There are a number of aspects to the proceedings.  The first and most obvious is that there is a highly conflicted relationship between the wife and the husband.  The relationship is internecine and is marked, not just by a conflict in relation to the children but also conflict in relation to matters of property resolution.  Whilst it is an imperfect summary of the extent of the dispute and conflict, it is not unreasonable to look at the level of activity on this file to gauge some idea as to how heated is the differences between the parties.

14. If that had been the extent of the matter, whilst obviously that has some impact, it was likely that either the parties could have worked a pathway through their differences or, indeed, the Court would have been able to do so.  But the matter is more intense than that.  In relation to the children, I accept that following separation, the children have spent no time with the father.  I am certain that if the father had been present today, it would have been his position that the mother had embarked upon a campaign and a process whereby the children were alienated from him.

15. It is the mother’s position that that has not occurred but the answer for what she accepts is the alienated relationship between the children and their father is to be found in the father’s overt, controlling, aggressive and at times violent behaviour.  The wife’s affidavit is a detailed document which sets out a continuing pattern of intimidation and aggression by the father.  To the extent that allegations are often made but, equally, are the subject of dispute, this matter is different in that the allegations have support by activity in another court.

16. The history since separation is depressing.  It is one of intervention orders, allegations of breaches by the father and findings in another court that indeed there have been breaches.  I am not able to use a decision or a judgment in another court to assist in a determination of the underlying facts but I am able to take the existence of a proceeding in another court and the outcome as a matter of significance in terms of the matters that I have to decide.  As far as the wife is concerned, whilst obviously she has been the subject of what she says is family violence of a serious and overt nature both before separation but also post separation, the position of the wife in her affidavit, to her credit, is that they are matters about which she probably would have been able to deal with and compartmentalise if there had been no other consequence of the father’s behaviour.

17. The issue is not so much about the effect of the father’s behaviour in respect of the mother but, rather, the effect that his behaviour has had on the children and how that now is displayed.  The best summary of the real impact is set out in the report of Mr D, which is the report dated 20 May 2014 annexed to the affidavit – sorry, annexed to his affidavit filed on 25 June 2014.  He summarises, on page 1, the matters says as follows:

    As noted in my previous report, the allegation and the counter allegations in this matter are extreme.  [Ms Proust] maintains that [Mr Croce] is aggressive and abusive, has been threatening and intimidating, that he has physically assaulted her and the children and that his behaviour is the reason why the children are so frightened to see him.

18. On page 4 he summarises the position in respect of C and B as follows:

    The reality, from [C] and [B’s] perspective is that their father is dangerous, that he is to be avoided, that he is frightening, that he has continued to harass the family, that he stalks them and their mother and that he is too dangerous to see.  Both children impressed as being tremendously emotionally fragile.  Of the two children, the father’s behaviour appears to have had the more significant impact on [B].

19. Mr D opines, in relation to B:

    [B] is in even more of a fragile emotional state.  Any mention of his father was sufficient to cause him emotional decompensation.  He told me he lives in fear of silver cars and people waving because this is what his father has done.

20. At page 5 he says:

    The reality, at the moment, is that the children have a sense of terror in relation to [Mr Croce] and that he claims is profoundly beyond the realities of their experience and that their behaviour towards him directly implicates their mother, her psychological state and her manipulation of them.

21. Mr D considers that what the children expressed in his presence was indeed a sense of terror of their father and that, as a result, they have now become, in his words:

    …profoundly alienated from their father.

22. It cannot be lost that the children are at an age when, all other things being equal, their wishes and their perceptions would ordinarily be given substantial weight.  Children of the age of 12 and 14 are at that stage when, providing it is the case that there are no other outside influences, it would be remiss of the Court to do other than to regard strongly what it is the children would say about their own circumstances. 

23. It is not simply the case that because a matter proceeds undefended that an order can be made, either by consent or by default, without having proper regard to the provisions of the Family Law Act 1975 (Cth) (“the Act”).

24. All matters that deal with children and parenting issues are to be determined pursuant to Part VII of the Act. What is different is that the proceedings become truncated because the Court does not have the advantage of evidence, in this case, from the husband nor, indeed, in respect of that which arises from cross-examination.

25. Part VII of the Act sets out the legal principles which govern parenting proceedings. I am required, under s 60CA, to have regard to the best interests of the children as the paramount consideration.

26. I take into account the objects of Part VII as are set out in s 60B(1) of the Act. The determination of the best interests of the children are always to be considered pursuant to s 60CC with particular attention to the primary considerations as outlined in s 60CC(2) and the additional considerations as set out in s 60CC(3). I will come to those considerations in a moment. They are of particular importance in this case, arising out of the allegations and assertions of family violence.

27. As indicated, s 60CC(2A) provides that in respect of the considerations in s 60CC(2), the Court shall give greater weight to those considerations in ss (2)(b).  The application of s 61DA(1) provides that:

    When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child, for the child’s parents to have equal shared parental responsibility.

28. That presumption, of course, does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or of a family member or has engaged in family violence.  In this case, obviously, I am being asked not to apply the presumption and to make an order for sole parental responsibility in favour of the wife.  Such a proposition is not spoken against by the ICL.  The allegations and the very nature of the matters raised in the affidavit material, both in respect of the mother’s affidavit but also, importantly, in the matters raised by Mr D in his affidavit, are matters that give me little hesitation in making an order for sole parental responsibility.

29. As a result I am then not obliged to consider the competing proposals for the parties or, indeed, whether, in respect of an order made, whether it be for equal time or substantial and significant time and whether the competing proposals of the parties would be reasonably practicable.  In this case, I do not need to be concerned about that.  This case, as in so many cases, raises the tension that often appears on the evidence in respect of s 60CC(2)(a), namely, the benefits to the child or children of having a meaningful relationship with both of the child’s parents, and ss (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

30. Brown J in the decision of Mazorski & Albright [2007] FamCA 520 defined “a meaningful” relationship as one which is important, significant and valuable to the child. But clearly in this case the issues in respect of the need to protect these children from physical or psychological harm or, indeed, from being subjected to, or exposed to, abuse, neglect or violence must take precedence. Such an outcome is supported by the evidence, in particular the conduct of the husband in the continued breaching of intervention orders, but, again, more importantly, for the purposes of these orders, in the observations of Mr D that these children are deeply psychologically affected, are in terror and are alienated from their father to an extent where there is no reasonable prospect of their relationship certainly at this stage being restored.

1. In that regard, I take into account the evidence that there has been genuine attempts in 2014 to effect what might be described as reunification therapy or counselling with a spectacular lack of success.  To some extent it is hardly surprising, given the history of the matter.  The additional considerations are obviously important, and whilst I do not propose to go into those matters in detail, the parties can be satisfied that I have had proper regard to them.

2. I have already indicated that, subject to an assessment of the level of maturity of the children and their insight, weight should be given to the children’s wishes and views as required under s 60CC(3)(a).  In this case, I am satisfied that the children have a level of insight, maturity and understanding that I can afford and accord significant weight to their position.  It might be said that so trenchant is their stated views in respect of a relationship with their father that any other consideration becomes irrelevant.  I do, however, consider the balance of s 60CC(3) in relation to the additional considerations. 

3. The orders, however, are not so prescriptive that they remove any possibility of a future relationship between the children and their father.  Whilst obviously the essence of the order is for sole parental responsibility and that the husband spend no time with the children, subject to their wishes, nonetheless, the position is that he is able to forward communication to the children and the wife is obliged to provide the husband with information about the children’s progress at school both by way of report and photographs. 

4. It is difficult to try and foretell the future, and clearly I do not propose to do.  What children feel and think at age 14 and 12 may not be what they think and feel when they become adults.  It may be that they wish to explore a relationship with their father.  It may be that they do not.  Importantly, though, I am satisfied that whilst I need to give priority to the need to protect these children from physical or psychological harm, and that these proposed orders achieve that focus. I am equally satisfied that more than mere lip service has been paid to the benefit to the children of having a meaningful relationship with both of their parents.

COSTS APPLICATION

1. At the conclusion of orders being made in respect of the parenting issues, Mr Glass of counsel has made an application for the wife’s costs as and from 22 May 2014, with such costs to be assessed in default of agreement.  After some exploration with Mr Glass, it appears that the question of costs, at least as initially his application seeks, included not just costs in respect of parenting matters, but costs in respect of some more minor, but nonetheless important, issues involved in the property resolution. 

2. Obviously I did not consider, nor was I aware, of what costs might arise in respect of the property dispute that the parties had but then were able to resolve.  And, in any event, there is an issue as to whether it is a matter appropriate for me to hear and determine or whether, indeed, the judge at the time, Cronin J, who had the conduct of the property issues, should properly hear that.  It may be that those issues have created a reconsideration of that aspect of the wife’s costs application. Mr Glass on behalf of the wife has now abandoned that aspect of the application and accordingly the issue of costs now relates solely to issues that arise and relate to the determination of the parenting proceedings heard and determined this day. 

3. On closer investigation and consideration, the usual considerations are to apply, namely, s 117(1), where each party to the proceedings would ordinarily bear his or her own costs, and circumstances under s 117(2), where if in the opinion of the court the position is if it appropriate to do so, the court can by taking into account what order should be made in respect of costs under the provisions of  s 117(2A).  Whilst not closing the door, it is likely that the application will centre upon s 117(2A)(e) and (f), namely, whether any party to the proceedings has been wholly unsuccessful and whether either party to the proceedings has made an offer in writing to the proceedings to settle them and that offer was not accepted. 

4. Exhibit “1” in the proceedings put the father on notice that costs would be sought.  I think it is reasonable, however, to assume that the father may not have had in the forefront of his mind the question of costs, but rather was more focused on matters relating to parenting.  Also, I am mindful of the dispute that exists between the parties in this matter, but in particular of the extreme reaction to the dispute by the children. 

5. Whilst it is easy to consider the question of costs and, if appropriate, to make an order that sends the parties off for a taxation of costs, it is still an exacerbation and a continuation of the litigation.  It is not unknown for children to become aware not just of the proceedings, but of the cost of the proceedings and that then becomes another source of concern, distress and upset.  I think if it is the position of the wife and the clear intention of the husband that these proceedings be brought to an end as soon as possible, they do so because they recognise, that once things return to a level of normality, it may be that the children will become less anxious and less affected. 

   I do not propose to allow this situation to linger, and accordingly I propose to hear and determine the wife’s application for costs within a shortened period of time.  That will, of course, require notice to be given to the husband.  As I have indicated to counsel, it would be of considerable assistance that prior to this matter resuming before me at the end of my time in the Melbourne registry that the father has been given an indication of the magnitude or extent of the costs sought on a party/party basis.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 18 May 2015.

Associate: 

Date:  25 May 2015