Rader & Rader (No.4)
[2019] FCCA 2826
•13 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADER & RADER (No.4) | [2019] FCCA 2826 |
| Catchwords: FAMILY LAW – Parenting – urgent application by Independent Children's Lawyer supported by mother to move children and parental responsibility from father to maternal grandparents – maternal grandparents joined – psychological risk – reliance on clinical notes of children’s discussions with psychologists and counsellors – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZL, 60CA, 65AA, 60CC, 60CC(2), 60CC(3), 68Q, 68P(3), 68B |
| Cases cited: Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 |
| Applicant: | MS RADER |
| First Respondent: | MR RADER |
| Second Respondents: | MS HAINES & MR HAINES |
| File Number: | SYC 1641 of 2019 |
| Judgment of: | Judge B. Smith |
| Hearing date: | 13 September 2019 |
| Date of Last Submission: | 13 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Bowral Legal |
| The First Respondent appeared in person: |
| The Second Respondents appeared in person: |
Solicitors for the Independent Children's Lawyer:
| Morton Family Lawyers | Ms Morton |
ORDERS
Until further order, the second respondents have sole parental responsibility, exercised jointly, for decisions concerning the major long-term issues for the children [X] born … 2005 and [Y] born … 2006 but shall not make any non-urgent major long-term decision without consulting with each of the parties first and obtaining an order of the Court.
Until further order, the children live with the second respondents at a residence which allows the children to continue attending their schools.
Until further order, the parties, including the second respondents, and the children engage in family therapy with Ms F and for that purpose, each of the parties shall forthwith contact Ms F to arrange initial appointments and that the costs of this therapy shall be shared equally between the applicant and the first respondent.
Pending further order and pursuant to s.68B of the Family Law Act 1975 (Cth), the applicant and the first respondent be restrained from:
(a)contacting the children;
(b)contacting any psychologist or other employee of Psychologists C;
(c)contacting any of the children’s medical practitioners; and
(d)contacting the children’s schools.
Until further order, the first respondent may despite these orders spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
Until further order, the applicant may despite any existing family violence order spend time with the children in accordance with any written recommendation of the family therapist, Ms F and that recommendation may include both time, place and supervision.
Until further order, the applicant is restrained from consuming alcohol for a period of twenty-four (24) hours prior to and during any time that the children spend with her.
Until further order, within thirty-five (35) days the second respondents file and serve a response and affidavit.
Until further order, the Court notes that these orders, and in particular Orders 3 and 5, are inconsistent with an existing Family Violence Order namely the ADVO made on 24 July, 2019 at Location L Local Court.
Until further order and pursuant to s.68Q of the Family Law Act 1975 (Cth), to the extent to which these orders are inconsistent with an existing Family Violence Order the Family Violence Order is invalid.
Until further order and pursuant to s.68P(3) of the Family Law Act 1975 (Cth), within seven (7) days the Registry shall provide a copy of these orders to:
(a)the Registrar at Location L Local Court;
(b)the Commissioner of New South Wales Police; and
(c)the Department of Communities’ and Justice.
Until further order, the second respondents are restrained and an injunction hereby issues restraining the second respondents, by themselves, their servants and agents from discussing with the children any aspect of the proceedings other than the orders regarding parental responsibility and with whom the children live.
The application is adjourned to 10 December, 2019 at 9:30am for mention.
Any application in a case or objection to subpoena made returnable by the registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
The oral application made by the first respondent in court today being 13 September, 2019 for immediate stay of these orders pending appeal be dismissed.
The maternal grandparents, MR HAINES and MS HAINES be joined as the second respondents to these proceedings.
The legal representatives for the applicant and the respondent in person have leave to view in the back of court only, for the purposes of the interim hearing today, all documents and material returned to the Court from the following subpoenas:
(a)subpoena number 7 filed by the applicant on 26 June, 2019 addressed to Psychologists C;
(b)subpoena number 8 filed by the applicant on 10 May, 2019 addressed to Medical Centre M;
(c)subpoena number 10 filed by the applicant on 10 May, 2019 addressed to School E; and
(d)subpoena number 26 filed by the applicant on 10 May, 2019 addressed to School D.
NOTATIONS
The Independent Children’s Lawyer shall provide a copy of these orders to Psychologists C, and any medical practitioners that may treat the children from time-to-time, and each child’s school.
Pursuant to s.65DA(2) 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rader & Rader (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1641 of 2019
| MS RADER |
Applicant
And
| MR RADER |
First Respondent
| MS HAINES & MR HAINES |
Second Respondents
REASONS FOR JUDGMENT
This is Judgement ex tempore in respect of interim parenting proceedings. This matter has been heard before me today. I refer to the transcript. Given the circumstances it is appropriate and necessary to give short form oral reasons for decision today, pursuant to section 69ZL of the Act.
The overriding and paramount considerations that the Court must always have in mind are the best interests of the children, section 60CA, 65AA, as determined in accordance with section 60CC, in particular, 60CC(2).
The first and most important considerations are the twin pillars referred to in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520. First the children must be protected from physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence. Second is the benefit of a meaningful relationship with both parents.
There are other additional considerations, however, for reasons that will become apparent, this case was run today and revolves around the requirement to protect the children from psychological harm.
The mother in the matter is 49. The father is 51. They commenced cohabitation in about 2003, married in 2009 and separated in 2017. There are two children of the relationship, [X], who was born in 2005 and is now 14 years of age, and [Y], who was born in 2006, who is now 13 years of age.
The maternal grandparents attended today and, by way of oral application, have been, as they were entitled to be, granted the right to be joined. And they have been joined and are the third respondent jointly and they have been briefly heard.
The mother has a mental health and drug and alcohol history, which she freely acknowledges. At the moment, there is an Apprehended Domestic Violence Order against the mother in respect of both the father and the children. The circumstances of that are contested, as is most of the material in this case, not unusually on an interim decision-making basis. The mother’s position is that the children should not live with the mother and that she should not be exercising parental responsibility at the moment.
The father says that the children should live with him. He should be exercising sole parental responsibility.
The independent children's lawyer says that the father also presents risks, particularly of psychological harm to the children, and has proposed that the maternal grandparents should exercise parental responsibility and that the children should live with them.
Before I go further, I should say that it is important to remember that as the Courts have said many times in particular in cases such as Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 and Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 that these are interim proceedings only in which the Court is “faced with is conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the children.” The orders that I make today are, as was noted in Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101, “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing.”
Significant, as the Court has said in Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 and similar cases, the fact that the facts are in dispute:
…does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
I note that the real issues that have been joined here today are not the factors in the 60CC(3), but the primary question of whether or not the children are at risk of some psychological harm from continuing to live with the father, and whether their best interests would be served by living with the maternal grandparents.
I note in this regard that whilst the mother may have initially had a different position, she ultimately agreed broadly with the independent children's lawyer’s proposal.
I again note that since these are interim proceedings, any decision I make today is in no way final. It does not stop a change of position at some later stage. I have not had cross-examination. I do not have any expert evidence. I have material from the mother and the father which is irreconcilable.
I also have, which I will refer to shortly, significant evidence from the psychologist notes and the school counsellors notes who have been seeing each of the children. I give great weight to that independent evidence of what the children have told their psychologists and school counsellors.
I think given the contest as between the parents and the irreconcilable evidentiary differences, great weight must be given to what the children have told their school counsellors and psychologists, particularly when they are 13 and 14 years of age.
I note that the mother does not seek parental responsibility now. There is a rebuttable presumption that the father will have parental responsibility. There are allegations against him of family violence. He disputes those.
It seems to me that this case must be considered in terms of parental responsibility, looking not just to a presumption, which may be rebutted anyway in respect to the father because of those allegations, but even if not there then given all of the issues.
The question of parental responsibility for these children, at least on an interim basis, must be considered based upon the facts before the Court and the arguments that have been raised as to their safety.
I have the clinical notes in respect of each child in respect of their counselling with Psychologists C where they each see a different psychologist. I also have their school counselling records, General Practitioners records and I have some school records, which I have just read.
I refer to the transcript of argument and I note it is quarter to 5. I note that one child is still sitting at the school and that another child is on the way home, so that perhaps I cannot be as fulsome in my recitation of the material as I might otherwise be, and to start with some of the material and not deal with all of it may also be difficult.
In short, the independent children's lawyer in aide-mémoire 3 had extracted material which she points to as indicating that the children are not being honest with their father, and that in effect, since they cannot live with their mother, they are unhappy living with him, but they are not being truthful with him about their unhappiness.
I have looked through the notes and compared them with the aide-mémoire. I am satisfied that in general the extract that the Independent Children's Lawyer has provided is broadly correct. I note that there are a few issues with it. For example, on 26 February 2019, where [X] spoke to the Medical Centre M, the Independent Children's Lawyer has said:
…finds it hard to talk to her dad. He has a clear hatred towards her and is biased.
I note there appear to be two references to that in those notes and one of them clearly has after the words "her" the word "mother", so that it needs to be carefully read that it is not being suggested that the father has a clear hatred towards [X], as might be taken from that, but towards her mother, of which there is no doubt.
But, otherwise, I think the summary of the material extracted is reasonable. The father said it needs to be read in context. I have read it as best I can. Some of the handwritten notes are very difficult to read and it is sometimes hard to tell when the father has been in the room with them. But I think [X] saying things such as:
Dad is annoying. I am stuck with him for four years. How am I going to cope?
And:
He yells and can be a bully.
The fact that she says both parents were drinkers and pass out drunk:
I am not a priority. I am alone. My parents weren’t cut out to be parents -
gives a fair tenor of her views.
[X] indicates that she misses her maternal grandparents, who have intervened.
The father says that the maternal grandparents cut themselves off and did not want to have anything to do with the children.
I understand the grandparents' position to be quite contrary to that.
The fact that in May 2019 when [X] visited the maternal grandparents her father arranged that to be supervised by a neighbour, tends to suggest to me, although I cannot decide it as a question of fact today, that the maternal grandparents' position that they have not distanced themselves, but that the father has distanced them because of the fact that they are the mother's parents, on balance, at the moment, seems to be more right.
I note that [X] said:
I used to have a great relationship with them -
and told her psychologist that she had been very close to her grandmother previously. I also note that [X] told her psychologist:
Dad is trying to control what I say and I prefer to meet with them separately -
I take this to indicate that [X] felt that she would like to spend time with her maternal grandparents and that her father was seeking to stop that.
In that context this is an interim hearing and I cannot and will not make any findings of fact, and who knows what may happen at a later date, but the school records where the father sent to the children's schools an email saying that the grandparents were not to be allowed to see the children went so far as to include a photograph of the grandparents, so that the school would know who they were to stop them from approaching the school.
That tends to suggest to me, on balance for the purposes only of this interim hearing, that it is not the grandparents who have distanced themselves from the grandchildren, but the father who has sought to distance them as part of his fight with the mother.
In terms of his fight with the mother, as I put it, I note that whilst I have given great weight to what is included in the clinical notes of the psychologists, at this stage, I now give no weight to any of the reports from the treating psychologists.
Issues were raised on the last occasion when I gave a decision about whether and who should access be given to the clinical notes of the psychologists about the nature of the reports they had prepared, and certain inferences that arose when they had answered questions in their reports which were not apparently asked in the letter of instruction sent by the solicitor.
That this happened is very apparent from the email communication between the father and those psychologists in respect of proceedings and reports, such that at the moment I feel no weight can be given to those reports.
Obviously, a legal practitioner is entitled to settle an expert report, but the ethical boundaries around that are similar to those that apply to the settlement of an affidavit. The desired answers cannot be suggested to the expert. They cannot be asked to exclude things that they think are relevant. They cannot be told what to include in their report.
Whilst I note that [X]'s psychologist appears to have felt great discomfort with what she was being asked to do, and she seems to have pushed back, [Y]'s psychologist seems to have gotten fully on board with and accepted everything the father had said, and apparently has done all he could to help the father in this case.
I do not criticise the psychologists. They are treating psychologists. They clearly do not understand the forensic process, but when a psychologist in email correspondence is willing to change his report in that way to help a party because he has been convinced by the party, who is the only parent he has spoken to, that the parties case is righteous and his case must be won, then, at that stage, absolutely no weight can be given to any opinion that person provides.
I also rely upon the clinical GP notes in respect of what the children are saying. The Independent Children's Lawyer referred to the email from Medical Centre M to the psychologists in 27 February 2019, noting that [X] said she:
…is missing her mum, but feels she can't talk to her dad about this. We had a really good session last week (with Mr Rader, the father, out of the room), but today Mr Rader came into the room asking about medication. We have not really even discussed medication at all. He agreed to leave the room again and -
I emphasise -
she says he is very controlling and wants to know everything we are talking about.
She also notes that now they are not together, [X] has lost most family friends. They are in contact with Mum and:
Mr Rader does not want the kids to see them. For example, her godmother. [X] is missing a close female adult that she can talk to. She does not want me to discuss this with Mr Rader.
I note that that again tends to support the idea that the father has tried to isolate the grandparents away from their grandchildren, rather than the grandparents abandoning their grandchildren.
I note in respect of [Y] that he reported being worried about his father's mental health. He says that:
His mother is causing his father to stress, sees this in his father losing his temper more easily, although [Y] said that Dad always apologises the next day. [Y] reports Dad communicating a lot of what is happening in Court, the police and the mum. [Y] very well informed. Mum didn't show up to the AVO. Mum did a fake AVO on Dad. Mum lied to police.
Now, the father's initial position at the last interim was that he was not telling the children anything, and it is quite clear that he was. Today he says that was because he had very bad legal advice, but I am not satisfied that his lawyers told him that he should keep his children intimately informed in all the terrible things he says the mother was doing.
What I take from these notes is that whilst the mother is not currently in a position to care for the children and, indeed, one has grave concerns that because of her mental health and drug abuse issues that she may have harmed the children previously, that the father is more concerned with winning the war against the mother than he is with the welfare of the children, and that they have become mere soldiers on the battlefield who may have to suffer, so long as he gets what he wants. That is very unfortunate. Unfortunately, it is also not that unusual, but that puts the children in a difficult position.
I note that when the Medical Centre M spoke with [Y] in March of this year, he said that there was no contact with maternal family and that Dad emailed the grandparents to see if they would meet [X] and [Y] and they declined. Again, I have grave concerns about the accuracy of that and whether the children have been told that for forensic reasons.
Also I am very concerned about the fact that [Y] said to his doctor, of his father, he:
…takes all his anger out on [Y] and [X]. This upsets [Y] – afraid of Dad a few times in the past, when Mum made him.
It is also very interesting that [Y] takes the view that when his father is angry and takes things out on him, it is not his father’s fault, but his mother’s fault, because his mother has made his father angry, and that is why the father has to take his anger out on this 13 year old boy.
These matters, as I have said, are untested, and once we have a fuller hearing, and hopefully soon with Dr B’s psychiatric report, it may be that these concerns are unfounded, and I keep that in mind.
But having just spent the better part of an hour reading the clinical notes, the impression I have is that these children are, indeed, being used just as pawns in the forensic battle between the parents, that no particular care is being taken for their mental health, and although they both seem to be doing well at school, that is despite, not because of any parenting they are currently getting, and who knows how long that will last.
In those circumstances and mainly given this subpoenaed material I am gravely concerned about the children’s psychological safety continuing to live with the father.
For those relatively short reasons, I think that the orders broadly proposed by the independent children's lawyer that the children live with the grandparents should be made. I noted some concerns with her, and I understand the Independent Children's Lawyer and the mother accepted the issues I raised.
The father, of course, takes a very different view and believes the children should stay with him. I do not accept that is in their best interests.
I will have settled orders drafted and entered this afternoon before we go. But in broad terms, I am going to make an order that the third respondents, being Ms Haines and Mr Haines, the maternal grandparents, shall jointly exercise sole parental responsibility in respect of the two children but are not to make any major long-term decision without consulting with each of the parents first, and obtaining an order of the court.
I note that the intention of this is that they can deal with the school about schooling, but they are not to change the school. If any health issue arises, they can deal with the children’s health, and this gives them that authority. But it is not anticipated that they will change their name or do anything else significant in the meantime. I make an order in accordance with order 2 as proposed by the Independent Children's Lawyer, but I shall change the last words to say something like “pending further order, the children [X] and [Y], shall live with the maternal grandparents at a residence which allows the children to continue attending their schools.”
I will make order 3, that the parents, maternal grandparents and children engage in family therapy with Ms F, and for that purpose each of the parties shall forthwith contact Ms F to arrange the initial appointments, and that the cost of this therapy shall be shared equally between the two parents.
I note that the mother already has an ADVO against her in respect of dealing with the children. I will make the order sought by the Independent Children's Lawyer, given the concerns that have been raised and given what I have just read in the clinical notes, that pending further order, and pursuant to section 68B of the Family Law Act, the father be restrained from (a) contacting the children (b) contacting the children’s psychologists or any other person at Psychologists C psychology contacting the children’s treating medical practitioners.
I will note that a copy of these orders shall be provided by the Independent Children's Lawyer to Psychologists C and to the GP. I will add to the order, in respect of the restriction on the father, that he is restrained from contacting the children’s schools, on the same basis.
The Independent Children's Lawyer proposed time with the mother. For reasons I indicated during argument, I think that is premature. I am hopeful that the mother will manage to bring herself together so that she is able to take part in the children’s lives. But given what has occurred, I think that any order for time to take place at the moment is premature. I think the children are of an age where their views need to be taken into account. I am also worried greatly that we may pre-empt and undermine the family therapy that I am ordering if we force the children to spend time with the mother now. I will make an order that the mother may, despite any existing family violence order, spend time with the children in accordance with any written recommendation of the family therapist Ms F, and that recommendation may include both time, place and supervision.
I will make the identical order in respect of the father.
I will make, by consent of the mother, order 6 in the form proposed by the Independent Children's Lawyer that the mother be restrained from consuming alcohol for a period of 24 hours prior to and during any time the children are with her.
I will make order 7, but varied to say that within 35 days, the maternal grandparents to file a response and affidavit. I will make proposed orders 8, 9 and 10, which formally note the inconsistency between these orders and the existing family violence order of 28 July, and grant leave, pursuant to 68Q and 68P(3) for what needs to occur to occur.
I note that the children are to live with the paternal grandparents as of tonight. I will now stop and hear the parties in respect of the practicalities of changing the residence this evening.
[RECORDED]
I will make an order that all of those people are able to have a copy of these orders.
[RECORDED]
There is an oral application for an immediate stay of the orders.
The court is required to consider a variety of factors, including the merits of the application. Objectively, given the material I have read in the subpoenas, I think the appeal would have only moderate prospects. I cannot say, of course, that an appellate court would not take a different view having read that material. I look also to the question of whether the appeal will be rendered null. Obviously that is not the case. If an appellate court reviews the subpoenaed material and thinks that I have made an error they can move the children back. That is not ideal, but that is always going to be the case when one looks to move children.
I note the decision of Justice Ryan in Sheldon & Weir (No. 4) (2010) FamCA 1214. I note she stated at [39] that:
The authorities make plain a stay is not ordered as a matter of right. It is discretionary, and the decision to grant or refuse a stay will depend upon the circumstances of the particular case. In relation to an application to stay parenting orders, the Full Court in Truong & Liu (Chen) (No 2) [2008] FamCAFC 194 described the process thus:
38. These principles, both in the general law and in respect of parenting proceedings, are well settled…
Then there is an extensive set of authorities quoted followed by:
The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:
* the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
* a person who has obtained a judgment is entitled to the benefit of that judgment;
* the person who has obtained a judgment is entitled to presume the judgment is correct;
* the mere filing of an appeal is insufficient to grant a stay;
* the bona fides of the applicant;
* a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
* a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
* some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case;
* the desirability of limiting the frequency of any change in a child's living arrangements;
* the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
* the best interests of the child the subject of the proceedings.
Weighing all of these factors and keeping in mind that, in my view, even if the stay application itself is not a parenting proceeding, that nevertheless it is most appropriate, in my view, to apply the paramount principle of the best interests of the children, given the preliminary findings I have made and given that an appeal will not be rendered nugatory, and given that I believe that the children’s welfare is in issue, pursuant to section 60CC(2), I decline to grant the stay.
[RECORDED]
The father asks that the grandparents also be restrained from discussing proceedings, and they agree, I will also order by consent that the third respondents jointly are restrained by injunction from discussing with the children any aspect of the Family Law proceedings other than the fact that the court has ordered the children are to live with them, and they are to exercise parental responsibility until such time as the court has the chance to further discuss it.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge B. Smith
Associate:
Date: 3 October 2019
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