Randell and Randell and Anor
[2018] FCCA 2668
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANDELL & RANDELL & ANOR | [2018] FCCA 2668 |
| Catchwords: FAMILY LAW – Parenting proceeding – three children subject of the proceeding – respondents are parents of two elder children – applicant and first respondent parents of youngest child – eldest child estranged from biological parents – eldest child seventeen years old – issue whether parental responsibility for eldest child be shared or whether applicant should have sole parental responsibility – family report prepared – psychiatric reports of applicant and first respondent prepared – history of dysfunction that has affected the children – need to protect children from harm – contested intervention order proceedings on foot between eldest child and her parents – eldest child wishes to live with applicant – presumption that it is in the child’s best interests for parents to have equal shared parental responsibility rebutted – applicant to have sole parental responsibility – sole parental responsibility conditional upon parents being advised and afforded an opportunity to provide input. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662 Blaze & Grady (2015) 54 Fam LR 172 CDJ v VAJ (No 2) (1998) 197 CLR 172 Ellison & Karnchanit [2012] FamCA 602 KAM v MJR (1998) 24 Fam LR 656 Kulat & Azzarudin [2018] FamCA 22 Re Evelyn (1998) 23 Fam LR 53 Reid & Lynch (2010) FLC 93-448 Rice v Miller (1993) 16 Fam LR 970 Smith & Smith (1994) FLC 92-488 |
| Applicant: | MR RANDELL |
| First Respondent: | MS RANDELL |
| Second Respondent: | MR KARDOS |
| File Number: | MLC 10186 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 12 September 2018 |
| Date of Last Submission: | 13 September 2018 |
| Delivered at: | Melbourne |
| Orders pronounced: | 13 September 2018 |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Agresta |
| Solicitors for the Applicant: | Barbayannis Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr Horsfall |
| Solicitors for the First Respondent: | Knight Family Lawyers |
| The Second Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Elleray |
| Solicitors for the Independent Children's Lawyer: | Cathleen Corridon And Associates |
ORDERS
Subject to paragraph 2 of this Order, the applicant have sole parental responsibility for the child [X] born on 2001 ([X]).
The applicant’s exercise of parental responsibility pursuant to paragraph 1 of this Order shall remain subject to the following:
(a)the applicant will advise the first and second respondents in writing of the details and particulars of any decision that may need to be made or that he intends to make concerning the [X] respecting her education or health and will invite a written response or input from the first and second respondents within 14 days.
(b)upon either or both of the [X]’s parents making a written response or providing input pursuant to and within the time prescribed by paragraph 2(a) of this Order, the applicant will, in coming to his ultimate decision, consider the written responses or input received from the first and/or second respondents as to what is in the best interests of the child.
(c)upon reaching his ultimate decision respecting the matters addressed by this Order, the applicant will within 7 days advise the first and second respondent in writing of the decision so made.
IT IS NOTED that publication of this judgment under the pseudonym Randell & Randell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10186 of 2017
| MR RANDELL |
Applicant
And
| MS RANDELL |
First Respondent
| MR KARDOS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why an order has been made that the applicant should have sole parental responsibility for the child, [X] ([X]), born on 2001. [X] will attain her majority on 2019. Throughout the proceeding the applicant was referred to as [X]’s stepfather.
The order was made in circumstances where there presently exists a vacuum in relation to parental responsibility by reason that [X] is estranged from her biological parents but lives with the applicant’s brother and his wife. [X]’s clearly expressed wish is that she should live with the applicant. Her view is supported by cogent expert evidence. It is given unqualified support by the Independent Children’s Lawyer.
The order so made is conditioned upon obligations that the applicant will advise the respondents of the details and particulars of any decision that may need to be made or which the applicant intends to make in relation to [X]’s health or education, and to afford them an opportunity to proffer their views in relation to a proposed parenting decision of that type. It is also conditioned upon the applicant taking the respondents’ proffered views, if any, into account before implementing such decision.
The order as made was supported by counsel for the Independent Children’s Lawyer. The second respondent, who is [X]’s biological father, had been married to [X]’s mother, the first respondent. He also gave qualified support to the order while at the same time lending support to the submission made on behalf of the mother that there should be a shared parental arrangement.
Background
Three children are the subject of the proceeding. The respondents, who are no longer married, are the parents of the two elder children. The applicant and first respondent are the parents of the youngest child.
The applicant and first respondent commenced living together in 2010, married in 2014, and separated in late 2016. Their child was born in 2012.
In December 2016, the first respondent, who is seven years older than the applicant, applied for an Intervention Order against him. An order, which was made without admissions, will expire in April 2019.
[X] is estranged from her biological parents. In December 2016, she obtained an Interim Intervention Order against the first respondent grounded upon allegations of physical and emotional abuse by the mother. Her application for such orders is the subject of a contested hearing which is set down in early 2019.
Since December 2016, [X] has lived with the applicant’s youngest brother and his family. This arrangement was determined by the Department of Health and Human Services.
A detailed history of the parties’ dispute is recorded in the Family Report dated 18 June 2018 prepared by Ms B. The report details the applicant’s prior criminal convictions which were discussed openly by him with that report writer and a psychologist, Dr S, who had also prepared a report in relation to the applicant and first respondent. Their reports were relied upon by each of the parties and neither expert was cross-examined.
Procedural history
On 3 October 2017, the applicant filed an application for parenting orders. The orders sought were in relation to [X] and her two younger siblings. The applicant joined as respondents to both [X]’s biological mother and father.
On 8 November 2017, the Court made orders setting the proceeding down for final hearing and listing the matter for an interim hearing in relation to the question of whether the applicant might resume spend time arrangements with the children. Orders were made for the appointment of an Independent Children’s Lawyer and for a report following a child inclusive conference.
On 28 November 2017, the first respondent filed a Response and answering affidavit. It may be noted that the first respondent sought orders that she have sole parental responsibility for the youngest child and equal shared parental responsibility with the second respondent for the two elder children.
Each of the parties has filed a notice of risk making various allegations against the other.
The parties have issued a large number of subpoenas, some of which resulted in the production of documents that were supplied to the experts for the purposes of the preparation of their reports.
On 30 January 2018, a family consultant conducted a child inclusive conference. The consultant noted the need for the children to undergo therapy. She also noted that [X] demonstrated a bond with the applicant and that she spoke of how much she missed him. Recommendations were made, including that all children spend supervised time with the applicant and for the provision of a Family Report. Amongst the detailed observations of the consultant was that the first respondent lacked child focus, that her conduct could be viewed as divisive and manipulative, and that she would benefit from therapy.
On 1 March 2018, orders were made by consent regulating the terms on which the applicant might spend supervised time with the children. Orders were also made for the provision of a Family Report and a psychosocial assessment.
On 4 September 2018, orders were made by consent providing for the release of expert reports so as to facilitate a mediation of the issues in the proceeding.
On 6 September 2018, the first respondent filed an Amended Response in which she sought additional orders, including that she and [X] undertake counselling for a period of at least 12 months.
Commendably detailed submissions were filed on behalf of the applicant, first respondent and Independent Children’s Lawyer.
When the matter was called on for trial, the parties agreed that the proceeding should be stood down in order that the prospects of resolution might be explored further. The parties pursued those negotiations throughout the course of the day and announced that substantial agreement had been reached.
On the second day of hearing, the parties submitted consent orders which had the support of the Independent Children’s Lawyer. Relevantly, those consent orders provided that: (1) the applicant and first respondent should have shared parental responsibility for the youngest child; (2) the first and second respondents should have shared parental responsibility for the middle child; (3) [X] should live with the applicant or otherwise in accordance with her wishes; (4) the two younger children should live with the first respondent; (5) spend time, contact and changeover arrangements should be regulated in the manner set out; (6) the first respondent would enrol in a post separation parenting program and undertake psychological therapy; (7) the applicant would use his best endeavours to encourage [X] to engage in counselling with the first respondent at Relationships Australia; (8) the parties would participate with the children in a Family Life Parenting Orders Program.
As noted at [22(3)] above, the consent orders entail agreement that [X] should live primarily with the applicant and otherwise as she chooses.
The only issue that remained unresolved was whether the parental responsibility for [X] should be shared or whether the applicant should have sole parental responsibility until her 18th birthday in 2019.
Parenting applications – applicable principles
Mr Randell makes application for a parenting order.
Part VII of the Family Law Act 1975 (Cth) (Act), which concerns the subject, Children, is arranged in 16 Divisions comprising ss 60-70Q.
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: paragraph 60B(1)(b). The principles underlying those objects recognise certain manifold rights of children with respect to their parents: s 60B(2). The rights of children expressed in s 60B(2) remain subject to an exception “where it is or would be contrary to the child’s best interests”.
In Div 6 of Part VII, which concerns Parenting orders other than child maintenance orders, the expression ‘parenting order’ has the meaning given by sub-s 64B(1): s 4. Sub-section 64B(1) states that a parenting order is:
(a) an order under this Part. . . dealing with a matter under subsection (2); or
(b) an order under this Part discharging varying suspending or reviving an order . . . described in paragraph (a).
Sub-section 64B(2) is cast in ambulatory terms. It provides that a parenting order may deal with a wide variety of matters including the allocation of parental responsibility for a child. It is clear that a parenting order may be made conferring parental responsibility upon a person who is not a parent of the child: see, ss 61D(1), 64B(2), 64B(6)(d)(i)-(ii). So much is confirmed by longstanding authority: Rice v Miller;[1] Re Evelyn;[2] KAM v MJR;[3] Ellison & Karnchanit;[4] Mason & Mason.[5]
[1] (1993) 16 Fam LR 970 (Ellis, Lindenmayer and Bell JJ).
[2] (1998) 23 Fam LR 53 (Nicholson CJ, Ellis and Lindenmayer JJ).
[3] (1998) 24 Fam LR 656 (Burr J).
[4] [2012] FamCA 602, [111] (Ryan J).
[5] [2013] FamCA 424, [46] (Ryan J).
More recently, in Blaze & Grady,[6] Kent J stated:
From the starting point that the focus of the legislation is upon children’s rights on the one hand; and parental duties, obligations and responsibilities on the other, any contentions framed as a presumption “in favour of” a natural parent; or to speak of a preferential position “in favour of” a parent; or “weight to a particular (parent) applicant” is antithetical to that foundation. These kinds of contentions were raised and discussed in a number of cases including Rice v Miller; Re Evelyn (No 2) and Aldridge & Keaton. (Footnotes omitted).
[6] (2015) 54 Fam LR 172 at [102].
Section 65D concerns the subject, Court’s power to making parenting orders. By sub-s 65D(1), power is conferred on the Court in proceedings for a parenting order (subject to ss 61DA and 61DAB and Div 6 of Part VII), to make such orders as it thinks proper.[7] The discretion conferred on a Court by s 65D to make such parenting order as it thinks proper is a broad one: Bondelmonte v Bondelmonte.[8] The power created by s 65D confers an unfettered discretion on the Court, albeit one that must be exercised judicially: cf Norbis v Norbis.[9] At the same time, the Court may, in the interests of consistency, provide guidelines which inform the proper exercise of discretion cf Morton & Berry.[10] The ambit of the discretion explains why a Court will not interfere with such orders, merely because it might have taken a different view of the matter: CDJ v VAJ (No 2).[11] The Court’s discretion must also be exercised having regard to the objects and principles stated in s 60B.
[7]Section 61DA applies where a parenting order is made and requires the Court to provide for the obligations which the order creates and the consequences that may follow upon contravention. Section 61DAB is not presently relevant. Division 6 of Part VII is comprised of ss 65A-65ZD, the whole of which provisions were inserted in, amended by or repealed from, the Act by the Family Law Reform Act 1995 (Cth) and Family Law Amendment (Shared Responsibility) Act 2010 (Cth).
[8](2017) 259 CLR 662 at [32].
[9](1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ)
[10] (2014) FLC 93-613, [21]-[24] (May, Ainslie-Wallace and Watts JJ) citing Norbis.
[11] (1998) 197 CLR 172 at [151]-[152] (McHugh, Gummow and Callinan JJ).
Section 65AA confirms that, by s 60CA, the Court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. The power conferred by s 65D(2) to make a parenting order should be construed as being subject to s 65AA: Reid & Lynch.[12] By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order under that sub-section is a parenting order: Reid & Lynch, supra.
[12] (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing).
In determining the best interests of the children, there are certain primary considerations which the Court must take into account: sub-s 60CC(2). The Court must consider:
(a) the benefit to the children of having a meaningful relationship with both of their parents; and
(b) the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).
In addition, amendments to the Act effected by s 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. It is plain that, where the circumstances require, the need for protection from harm as addressed by sub-s 60CC(2)(b) will assume prominence over the child enjoying a meaningful relationship with both parents as addressed in sub-s 60CC(2)(a). This conclusion is reinforced by the exception provided for in sub-s 60B(2) referred to above.
In deciding what parenting orders ought to be made in proceedings under Part VII, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA, that in deciding whether to make a particular parenting order, a Court must have regard to the best interests of the child.
In Cooke & Morton,[13] Ryan, Kent and Cleary JJ observed with respect to the nature of the statutory duties of an Independent Children’s Lawyer that:
. . . it is the child’s best interests that lie at the centre of parenting proceedings, rather than any assumed right, interest, entitlement or privilege of a parent/party to the proceedings.
Thus, it is plain that neither party may arrogate to themselves any right to insist on what parenting arrangements ought to be made.
[13] [2018] FamCAFC 9 at [39].
The principles referred to above are to be applied in the present case.
Evidence
The issue raised in this proceeding is to be determined on the balance of probabilities: s 140, Evidence Act 1995 (Cth). In the determination whether an issue has been established to the requisite standard, the Court is entitled to take into account the nature of the claim and response, the subject matter of the proceeding and the gravity of the matters alleged: sub-s 140(2), Evidence Act.
The parties each relied upon their affidavits. As noted above, the applicant and first respondent had filed a notice of risk. Further affidavits had been filed by the applicant’s sister in law who had been a close friend of the first respondent and a senior contact supervisor who exhibited extensive notes of the supervised contact time the children had with the applicant.
The Court was also assisted by a Family Report prepared by Ms B and psychiatric reports of Mr S. Their independent expert evidence was comprehensive and relied upon by each of the parties.
There was no cross-examination of any witness and the remaining issue that fell for determination was resolved upon the submissions which were made.
I considered each of the parties’ affidavits and the evidence which they gave at trial and did so having regard to the principles stated above.
Consideration
The parties’ submissions focussed upon the considerations relevant to the issue of parental responsibility for the child without express reference to the matters in ss 60CC(2)-(3). That they adopted this stance was explicable having regard to the ambit of their dispute. Nonetheless, I have given attention to each of the primary and additional considerations presented by that legislative pathway.
I entertain real doubt whether [X] will benefit at present from having a meaningful relationship with the respondents. It is to be hoped that this may change. Remarkably, until the consent orders were made on 13 September 2018, no steps had been taken to act upon the recommendations for therapy for either the first respondent or [X] so as to restore such a relationship.
There is a real need to protect [X] from harm of the kind addressed by para 60CC(2)(b). This is not a case in which one may ignore the very real history of dysfunction that has affected the children, and [X] in particular. Indeed, she has taken an initiative to protect herself from abuse or violence. While the first respondent relied upon the applicant’s history of offending, Dr S’s detailed reports make plain that the applicant has been candid about that history which I have considered in detail.
Using the Family Strengths and Needs Assessment tool (FSNA), Dr S assessed the applicant as presenting a risk in the Low to Moderate range. He also assessed him by the application of other accepted psychological methods as presenting a Low risk in terms of a psychosexual assessment.
Dr S’s FSNA assessment of the first respondent was Moderate. The matters revealed by the whole of the evidence, including that detailed in the experts’ reports, might have suggested the desirability of a psychosexual assessment of the first respondent. This had not occurred. Contextually, the catalyst for the order for the conduct of a psychosexual assessment of the applicant had been the first respondent’s allegations made against him.
Ms B considered that the first respondent demonstrated a limited insight into the impact upon the children of the continued conflict with the applicant. She expressed the same opinion in relation to the second respondent. Contrastingly, she considered that the applicant demonstrated an appropriate concern for the children’s welfare. In her discussion of the capacity and willingness of the parents to work co-operatively together, Ms B stated:
Mr Randell and Ms Randell’s relationship is acrimonious, with little trust in each other’s capacity. They do not communicate directly about [Z], relying on the supervisor of Mr Randell’s time with the child and solicitors.
It is unlikely that Mr Randell and Ms Randell would be able to work co-operatively together without the input of professional counselling, particularly for Ms Randell.
While Ms Randell and Mr Kardos present as co-operative and supportive of each other as parents to [X] and [Y], Mr Kardos presents as particularly aligned with Ms Randell’s negative views about Mr Randell and [X].
Further, in relation to parenting problems she considered as follows:
Mr Randell and Ms Randell have not protected the children from their conflict, nor from adult issues. Nor has Mr Kardos, given his alignment with Ms Randell. Sadly, [X] and [Y]’s emotional and psychological functioning has been impacted by the exposure to conflict and they will need professional assistance to recover.
As concerned protective factors, Ms B’s opinion was that:
While the risk of ongoing conflict and mistrust noted above must be addressed by Mr Randell and Ms Randell, a significant protective factor for all three children, but particularly [Z] is the overall competence of Mr Randell as caregiver.
Mr Randell demonstrates the capacity to provide for all three children’s emotional development. [X] and [Z] would benefit from immediately increasing their time with Mr Randell. [Y] would benefit from the opportunity to repair the relationship with Mr Randell, but professional assistance will be necessary.
Mr Randell’s extended family, particularly his brother and father are significant protective factors for the children. (Emphasis added)
The first respondent sought that there be shared parental responsibility with the applicant, or alternatively that it be shared by the respondents alone. Those submissions were made notwithstanding the matters stated by Ms B as set out at [48] above, the fact that there is a contested IVO proceeding on foot between [X] and her mother and that [X] is estranged from her parents. The report of Ms B states:
[X] presents as a mature adolescent girl whose views about the family relationships appeared reasonable and coherent with the interactions during the report appointment. She was however, particularly distressed about the separation from Mr Randell and [Y], and about Ms Randell’s purported ongoing denigration of her to the school community. [X] was also distressed about her experience of Mr Kardos’ limited support.
[X] said emphatically that while the household with Mr A is supportive, she wishes to live with Mr Randell. She said that she does not wish to spend any time with either her mother or father.
[X] said that she wishes to spend time with her siblings [Y] and [Z]. (Emphasis added)
Elsewhere, Ms B considered that the first respondent was not attuned to [X]’s distress and regarded the second respondent as presenting an attempt to understand [X]’s distress but unable to respond appropriately to her. She recorded that [X] felt a strong sense of betrayal.
The second respondent, who made his submissions in a candid and impressive manner, accepted that Ms B’s view of the alignment held with the first respondent was a fair assessment of the position. He made plain his love for [X] and expressed a desire that her relationship with her parents should repair. He accepted that, while the parties had agreed in consent orders on a wide range of matters, they had been unable to resolve the question of parental responsibility respecting [X] and asked that the Court decide the matter.
Ms B undertook a detailed evaluation of each of the parties and the children and in relation to [X], expressed her support for [X]’s wish that she should live with the applicant. She noted that [X] would benefit from psychological assistance. Ms B also noted that the parties would be unlikely to achieve a more settled basis for interaction without psychological intervention.
Ms B made recommendations consistent with the matters addressed in her report including that:
[X] lives with her stepfather Mr Randell if she chooses to do so. [X] spends time with her mother Ms Randell and with her father Mr Kardos as she might choose.
[X], [Y] and [Z] spend at least weekly time together, facilitated by a responsible adult.
As a matter of some urgency, [X] attends psychological therapy with a psychologist experienced in family law related issues and the adults, Mr Randell, Ms Randell and Mr Kardos are also involved.
She also made recommendations for psychological therapy of some parties.
While the Act provides by ss 61C for the parents of a child to have parental responsibility despite any changes in the nature of the relationships of the child’s parents, this position does not actually occur in the present case in relation to [X]. She is presently estranged from the respondents, had taken out an Intervention Order against them and, unless the matter be resolved, is to become involved in a contested proceeding in relation to that application in early 2019. It appears that neither biological parent makes any financial contribution to her care.
I accept the submission of counsel for the first respondent that s 61DA(1) requires the Court to apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her care. However, that presumption does not apply where there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or in family violence: see sub-s 61DA(2). Further, the presumption of shared parental responsibility may be displaced or rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for their parents to have equal shared parental responsibility.
Given the matters addressed above, I formed the clear conclusion that it was in [X]’s best interests that the applicant should have sole parental responsibility conditioned upon him engaging in the consultative process that is provided for by the orders.
In resolving the issue in dispute, I attach particular significance to [X]’s expressed wishes, to the support which those wishes are given by the Family Report writer, the conclusions which Ms B and Dr S have reached and to the unqualified support that was given by the Independent Children’s Lawyer for the making of that order: cf Collu v Rinaldo.[14]
[14][2010] 10 FamCAFC 53, [355] (May, O'Ryan and Strickland JJ) citing Smith & Smith (1994) FLC 92-488.
Conclusion
Inherent in the discretion in making parenting orders is that the task is evaluative, necessarily predictive and involves assumptions where no one answer was the only, or only correct, available one to be given: Kulat & Azzarudin [2018] FamCA 22 at [39]; CDJ v VAJ at [151]-[152].
I was satisfied that, in [X]’s best interests, the applicant should have sole parental responsibility until she attains the age of 18. It is to be hoped that the recommendations for therapy are implemented and that such therapy is productive of improvement in both parenting skills and in the restoration of [X]’s relationship with her parents.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 September 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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