Ravena & Ravena

[2021] FCCA 1701

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ravena & Ravena [2021] FCCA 1701

File number:

ADC 5121 of 2020

Judgment of:

JUDGE YOUNG

Date of judgment:

21 May 2021

Catchwords:

FAMILY LAW – parenting – application concerning two children aged nine and six years old – whether the mother should relocate with the children to Adelaide – where the mother unilaterally relocated to Melbourne with the children – where there is an allegation that the father had a physical altercation with the child – where the mother asserts the child has diagnoses of oppositional defiance disorder and attention deficit hyperactivity disorder – where the mother has prevented the children from having a relationship with the father – further evidence required – adjournment of proceedings.  

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Adamson & Adamson (2014) 51 Fam LR 626

Oswald & Karrington (2016) 55 Fam LR 344

Number of paragraphs:

35

Date of hearing:

21 May 2021

Place:

Adelaide

Solicitor for the Applicant:

Mr Harley of Dixon Gallasch Pty Ltd

Solicitor for the Respondent:

Ms Green of Phillips Green & Associates

ORDERS

ADC 5121 of 2020

BETWEEN:

MR RAVENA

Applicant

AND:

MS RAVENA

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	21 MAY 2021

UPON NOTING that the Courts expects the relevant notes of Ms B the psychologist to be obtained by subpoena.

BY CONSENT UNTIL FURTHER ORDER THAT:

1.That the children X born in 2012 and Y born in 2015 spend time with the father in Melbourne on 6 June 2021 and on 4 July 2021 at the McDonalds restaurant Suburb C, Victoria between 12:00pm and 2:00pm

2.That the children have telephone communications with the father each Thursday between 5:30pm and 6:00pm (Victorian time) with the father to place the calls.

THE COURT ORDERS UNTIL FURTHER ORDER:

3.That the affidavit filed by the mother on 4 May 2021 be uplifted and refiled compliant with the Court rules in regards to font size.

4.That pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information:

(a)copies of any notifications regarding abuse allegations arising or relating to the children X born in 2012 and Y born in 2015;

(b)any assessments or investigations into such abuse allegations;

(c)the outcome or findings of any such assessments and investigations; and

(d)copies of any reports received by Department for Child Protection in the course of investigating any such notifications.

5.That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without the Courts leave.

6.That pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department shall provide the Court with the following documents or information:

(a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MR RAVENA born in 1980 and MS RAVENA born in 1980 or the children X born in 2012 and Y born in 2015; and

(b)the outcome or findings of any such investigations including antecedent reports for each of the parties.

7.That pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2012 and Y born in 2015 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

8.That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

9.The parties do all things necessary to enrol in and be accepted into the Suburb D Children’s Contact Service and the E Children’s Contact Centre, Melbourne or any other Children’s Contact Centre with the shortest waiting time In Melbourne as nominated by the mother.

10.That at the conclusion of the visits at the Service, a report be obtained from the Service at the joint expense of the parties.

11.That the interim hearing be adjourned part-heard to 29 July 2021 at 2:15pm.

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 under the pseudonym Ravena & Ravena is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application by the father concerning two children, X, who is nine years old, and Y, who is six years old. The parties appear to have separated either in late 2019 or early 2020. 

2. On an occasion in March 2020, while both children were spending time with the father at his home, there was an incident whereby X was involved in a fight with his sister. The father intervened and the situation escalated with X, apparently, being locked outside in the yard.  X then proceeded to pick up a broom and, according to the father at least, knocked on the doors and windows with the broom.  The father said he was concerned that there may be damage to the rental premises and stepped out to remove the broom from X.  It should be noted the father’s version of events is the only one that has been put forward.  In the melee it appears that X was hit on the head with the broom and fell over and bruised his leg. Presumably X told his mother about this incident once the children returned home to their mother’s care.

3. A report was made to the South Australia Police and the Department for Child Protection (DCP).  The police investigated the matter and were satisfied there was no assault. Nothing further was done by the police. The DCP, however, conducted an investigation into the matter. Their letter sent to the mother dated 24 April 2020 refers to these matters. I assume one in the identical terms was sent to the father.

4. The letter also refers to a previous incident that, according to DCP, occurred in 2019.  This incident relates to allegations that the father grabbed X by the arm digging his nails into X’s skin. It was said X refused to stay at the father’s home for some time after that alleged incident.  It is unclear from the letter whether DCP was satisfied that that event occurred or not, however, it is referred to.  The DCP investigation found that the allegation of “inflicted injury”, that is deliberate injury inflicted on X, was not substantiated.  The DCP did, however, make a finding as follows:

   Child (X) is significantly impaired (anxiety, depression, behavioural, learning and social problems) – substantiated.  The father, Mr Ravena Ravena [sic], recorded as Responsible for Harm.

   I find that conclusion somewhat confusing.  I am unclear as to what is intended by that finding. The expression of the two sentences appear to not make a great deal of sense. 

5. Y was not involved in the incident I have just referred to, except indirectly. However, in relation to Y it was said that there was apparently a substantiated risk of emotional harm due to domestic violence.  It was said that Mr Ravena was responsible. Apart from the incident I have referred to involving the broom, the letter does not refer to an incident of family violence involving the mother.  Therefore, I am somewhat bemused by the conclusion that suggested the mother is at risk of family violence.  Notwithstanding that, the mother applied for a Domestic Violence Restraining Order soon after that event. An interim order was made against the father with the mother and the two children as protected persons.  The final order was made on 10 February 2021. The protected person was the mother. The order did not name the children as protected persons.  The evidence that was put forward in that proceeding is not before me. I do not know on what basis the Court made that order. 

6. It appears that sometime last year (it is said about June) the mother unilaterally relocated with both children to Melbourne.  The father’s affidavit states that the father was not initially aware of the relocation. It is not challenged that the father became aware of the mother’s relocation when the mother’s lawyer told the father that the mother had relocated to Melbourne.  This presumably occurred during the Domestic Violence Restraining Order proceedings. That was in September of 2020. 

7. On 23 October 2020 the father applied for final parenting orders, including an order that the mother relocate with the children to Adelaide.  The matter came on before me on 30 November 2020 when a Commonwealth Information Order was sought. However, the standard letter from Services Australia was not available which is required before the Court will make such an order.  In any event, the mother’s location was ascertained following that order. On 11 March 2021 there was an order made for a Child Inclusive Conference and the matter was adjourned to today for an interim hearing.

8. When the matter came on before me today the father’s position was that there should be an order that the mother relocate to Adelaide with the children and the children live with the mother. He also sought various other orders. 

9. The mother sought interim orders in her Response that she be permitted to remain living in Victoria and that the father be permitted to communicate with the child Y by telephone and that that is to be supervised by the mother.  She also sought orders that the father attend upon a psychiatrist and be psychiatrically evaluated, and he attend an anger management course with a specified practitioner. Further, at order 8(a) of the mother’s proposed orders, she sought that the child X communicate with the father on such days, at such times and under such conditions as determined by the mother pursuant to the child’s wishes.

10. Since approximately March, or at least since the time of the mother’s relocation a year ago, there has, apparently, been no communication between the children and their father.  The Child-Inclusive Conference Memorandum indicates that the mother is effectively opposed to the children spending time with the father or communicating with him. Ostensibly, though the mother makes proposals for communication, one interpretation of her attitude is that she really does not propose to facilitate any communication.  It should once again be highlighted that there has been no communication between the children and the father for a significant period and the mother was effectively hiding from the father until the Commonwealth Information Order was made. I infer from all of that that she is strongly opposed to the children spending any significant or substantial time with the father. 

11. The issue of the children spending time with the father was a concern of the Family Consultant who expressed the view at [67] that:

    Unless the mother is to return to Adelaide it is difficult to know what arrangements for the children are going to be in their best interests and workable.

12. At [68] the Family Consultant went on to say:

    Going forward at this time the options for the children to travel and spend time with their father in Adelaide are not supported by Ms Ravena.

13. And at [69] the Family Consultant said:

    Mr Ravena has indicated he would travel to Victoria at times, but this option is not, at this time, supported by Ms Ravena as she seeks no face-to-face time for the children with the father.

14. The Family Consultant’s understanding of the mother’s position after the Child-Inclusive Conference seems to be somewhat inconsistent with the orders that the mother seeks in her Response which was filed on 4 May 2021 (prior to the Child-Inclusive Conference). This inconsistency means I do not really know what the mother’s proposals are. However, her actions, at least thus far, indicate that she would appear to be opposed to the children spending any time with their father, or having anything other than a most nominal relationship with him. 

15. The position of the mother is essentially that the father has a mental health history. It appears that many years ago that may have been the case.  There is nothing before me now to indicate that he suffers from any mental illness.  The mother also refers to allegations of family violence.  The allegations concerning the mother herself appear to be relatively vague and do not appear to be supported by any independent material.  Though, attached to the mother’s affidavit there is a photograph of her arms with what appear to be two bruises on her right arm which she says resulted from a dispute at changeover of the children in late 2019. 

16. In relation to this allegation the Family Consultant observed, at [15]:

    The reported family violence appears to have been contextual and situational couple violence.  Ms Ravena when asked in the interview reported verbal denigration and said that Mr Ravena was sexually demanding.

17. As previously mentioned, the evidence about family violence concerning the mother is quite limited in scope. The episode involving X and the broom is of a somewhat different quality, particularly combined with the allegation that X was hurt on an earlier occasion. 

18. I was told today, and it also appears in the Memorandum from the Family Consultant, that the mother says X has been diagnosed with oppositional defiance disorder and attention deficit hyperactivity disorder.  Her affidavit, however, makes no mention of that.  There is no mention in the DCP report of the mother raising any information that X’s behaviour was of such a quality that such diagnoses might be required. 

19. Her counsel submits, based on instructions, that the diagnoses were obtained from a psychologist, Ms B. Ms B produced a letter which is annexed to the mother’s affidavit.  The letter is undated as far as I can see.  The letter makes no mention of those diagnoses.  I am not assisted by the letter. 

20. However, if it is the case that the child has been diagnosed with those disorders then that is highly relevant. Particularly to the alleged incident with the broom, or at least the context of the alleged incident. It is also relevant to the other aspects of the relationship between the father and X.  I might infer from that information that at times X’s behaviour has become severely dysregulated and that there are very significant behavioural challenges for X, particularly in managing his behaviour with his parents.  There is, however, no mention whatsoever of that in the mother’s affidavit.  I consider that to be unexplained. If it was deliberately left out of the affidavit, I consider that to be potentially misleading. 

21. The father’s affidavit refers to the father having completed a course which was outlined in the “Abuse Prevention Program” interim report dated 13 July 2020. The course is said to have been completed following the proceedings in the Local Court and the Domestic Violence Restraining Order proceedings. The report states, presumably referring to the course undertaken by the father over seven visits between 21 May 2020 and 2 July 2020, that:

    Mr Ravena has acknowledged the past problematic behaviours that led to his referral to the program.  Mr Ravena has acknowledged that he “never had the tools or knowledge to manage the situation…”

    I interpolate to say it is not clear what “situation” is referred to. It goes on:

    “…[He] was straight to anger or knee jerk reaction.”

    Presumably the above quote is of Mr Ravena himself. The report goes on to state:

    He also noted that he was not a present parent when he in contact (sic) with his children, stating that he would focus on minor issues rather than being involved in his children’s lives.

22. The report goes on to refer to the father saying that he grew up in an environment where there were abusive behaviours. The father appeared to acknowledge that his behaviour needed to change.  At the end of the report it was suggested that Mr Ravena’s matter (presumably the Domestic Violence Restraining Order application) be adjourned to give him the opportunity to continue with the program to address his behaviours. 

23. It is apparent to me from this material, first, that X appears to be a child with some very serious behavioural challenges, and secondly, that the father has probably not been well equipped to deal with those challenges. This has led to what appears to be a deterioration in the relationship between X and his father. 

24. That being said, the Family Consultant was of the view that the children had been:

    …subjected to maternal influence in their views about their father.

    The interviews of the children with the Family Consultant were conducted with the mother present. They were conducted by Microsoft Teams without any face-to-face meeting. I consider that there are some limitations in the Child Inclusive Conference Memorandum. 

25. As mentioned above, there are indications that the Family Consultant was concerned about maternal influence on the children’s responses.  In the case of X, he complains about his father’s behaviour, particularly over the broom incident.  X says he did not want to speak to his father on the phone.  He was also critical of the father’s lack of engagement when X spent time with him.  Y, at six years old, did not engage with the Family Consultant. Rather she sat on the mother’s knee during the interview.  In my view, the Memorandum is of limited value, partly because of the conditions under which the interviews were taken. 

26. I am satisfied that there are some complexities about this matter, particularly about the relationship between X and his father and how that might be repaired, if it can be repaired.  I am far from satisfied that the mother is, at this stage, willing to facilitate the children spending time with their father.  Further I am not satisfied the mother is prepared to facilitate or act in a way which offers both children the benefit of a meaningful relationship with their father in the context of this case.  That is a very concerning issue.  It reflects very significantly on the options that are open to me. 

27. I am not prepared to make the order that Mr Harley, counsel for the father, seeks today. He seeks that an order is made for the return of the mother and the children to Adelaide.  It is clear enough that a coercive order directed towards an adult to reside in a particular place so that the other parent may have the children spend time with them is at the outer margins of the Court’s discretionary power. I refer to Adamson & Adamson (2014) 51 Fam LR 626, and Oswald & Karrington (2016) 55 Fam LR 344 at [16] where it was said that such a coercive order is at the “extreme end” of the Court’s discretionary power and that it is “rare” and “extreme”.  That, of course, does not mean that such an order should not be made in the appropriate case.

28. The circumstances of this case are that the mother has unilaterally relocated, clearly with the view to severing any relationship between the children and the father. She has remained hidden for some months, has not communicated her whereabouts, or provided any means by which the children may communicate with the father. It may be that in practical terms, if the mother remains in Melbourne, there is no real possibility of the children having a relationship with their father.  If that were to be the case there would be, in my view, sufficient grounds for making the order that Mr Harley seeks.  However, as I said, I am not prepared to do that today because I consider I need more information about the nature of the DCP investigation and also the South Australia Police material. 

1. I propose to make section 69ZW orders to DCP and South Australia Police in relation to these children.

2. I propose to make an order that an Independent Children’s Lawyer be appointed. 

3. I propose to make an order that the parents are to immediately enrol in two children’s contact service – one in South Australia at the Suburb D Children’s Contact Centre and the other at the children’s contact service in Melbourne nominated by the mother in her affidavit.

4. I propose to make orders, following discussions between the parents, that the children are to spend time with the father on 6 June 2021 and 4 July 2021 in Melbourne at the McDonald’s restaurant, Suburb C between 12:00pm and 2:00pm.   That time is to be supervised by the mother’s brother, Mr F.

5. Further, I propose to make an order that the children are to speak to the father each Thursday between 5:30pm and 6:00pm (AEST) with the father to place the call. 

6. I am going to adjourn the matter for further consideration to 29 July 2021 at 2:15 pm.

7. I am going to note that I would expect the notes of Ms B, the psychologist, to be obtained by subpoena. 

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       26 July 2021