Ravena & Ravena
[2021] FedCFamC2F 16
•14 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Ravena & Ravena [2021] FedCFamC2F 16
File number: ADC 5121 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 14 September 2021 Catchwords: FAMILY LAW – parenting – 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 the children have spent time with the father once since the mother's relocation - where there is evidence the child has been diagnosed with oppositional defiance disorder and attention deficit hyperactivity disorder – where there is inadequate evidence to conclude the children have been exposed to family violence perpetrated by the father – where there is limited independent evidence of the children's relationship with the father – family report ordered. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 31 August 2021 Place: Darwin Counsel for the Applicant: Mr Harley Solicitor for the Applicant: Dixon Gallasch Pty Ltd Counsel for the Respondent: Mr Robinson Solicitor for the Respondent: Phillips Green & Associates Counsel for the Independent Children's Lawyer: Ms Boyle Solicitor for the Independent Children's Lawyer: Norman Waterhouse Lawyers ORDERS
ADC 5121 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAVENA
Applicant
AND: MS RAVENA
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X, born 2012 and Y, born 2015 (the children) attend upon a Court Child Expert (practising under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 30 November 2021 and that the family report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)the impact upon the children and upon their relationship with both parents if the Court made orders for the mother to relocate with the children;
(f)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
2.Not later than 4.00 pm on 21 September 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
3.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
5.The Family Consultant shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Registrar to list any relevant material presently before the Court in admissible form (may require consideration of status of material from child welfare department or police)
6.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
7.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
8.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
9.The proceedings are adjourned to the trial call-over list on 2 December 2021 at 9:30am.
10.The parties no less than seven (7) days prior to the call-over date provide to the Court:
(a)A brief Summary of Argument including Minute of Orders sought; and
(b)A Trial plan indicating estimated length of trial sought and witnesses relied upon at trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Ravena & Ravena is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is the continuation of an interim hearing about two children, X, who is nine years old and Y who is six years old. The relevant factual background can be seen in my interim decision and the published reasons of 21 May 2021. I was unable to reach a conclusion about the father's application for an order that the mother relocate the residence of the children from Melbourne, where she and the children have been living since June 2020, back to Adelaide, where she and the children had lived until then. I also wished to consider any material produced pursuant to s 69ZW orders to the Department of Child Protection of South Australia (DCP) and the South Australian Police (SAPOL). I indicated to the parties that I expected the notes of a psychologist who had treated X and diagnosed him with Oppositional Defiance Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD) in March 2020 to be produced to the Court. Regrettably, that latter task was not done. However, I have had the opportunity to consider the DCP records and further material provided by the mother about X’s diagnoses of ODD and ADHD.
The incident which was central in the events that followed was an incident between X and his father on the weekend of the 14/15 March 2020. That incident is dealt with in my earlier reasons. In summary, it was alleged that the father hit X with footwear, a thong, and a broom, leaving bruises. The mother made a notification to DCP and the matter was investigated by SAPOL and DCP. SAPOL did not consider there was any evidence of an offence to warrant further investigation. The DCP investigation resulted, as noted in my previous reasons for decision, in a finding that
Child (X) is significantly impaired (anxiety, depression, behaviour, learning and social problems) – substantiated. The father, Mr Ravena (sic) recorded as responsible for harm.
The mother's counsel submitted that there is a "history of family violence" in this matter, with the father as perpetrator. I asked counsel to point to the evidence in support of that submission. Counsel was unable to point to any concrete evidence, let alone independent evidence, to support the submission other than the passage:
The DCP have interviewed both parents, and have concluded that Mr Ravena does have issues with control and a negative view of women and children. When Mr Ravena attended the DCP office, he asked, "if there was a man that could help him". Mr Ravena has continuously referred to his estranged wife in a negative, detrimental manner, and has called X "spoiled", when X has significant issues with learning, socialising and behaviour, including anger. X’s behaviours are typical of a child who has been exposed to domestic violence and punitive parenting, and is receiving therapeutic assessment and intervention from a paediatrician, a psychologist and a psychiatrist, as arranged and supported by his mother, Ms Ravena.
It should be unnecessary to observe that what the father may have said to a child welfare officer about his estranged wife does not constitute family violence under the Family Law Act1975 (Cth) or in any other way. More substantially, the observation that X’s behaviours are typical of exposure to family or domestic violence and the implied conclusion that they are the result of exposure to family violence needs to be examined. The only particulars of family violence that I have identified in the material relate to an incident in September 2019 which was the subject of a notification to DCP in the following terms:
On … /9/19 at the car park of … [the father's work address], the mother had brought the children to the father's work address so that he could take the children to dinner as part of the custody agreement (verbal), there are no family court orders currently. The father complained about not getting enough time with his children and an argument occurred which degenerated into both parents pulling each other's glasses of each other's face and throwing them away. Father then proceeded to film on his phone and … mocking the mother … Both children … were upset by what was happening." (elisions in original).
It appears that both parents attended at the local police station after that and made complaints against the other.
When the mother made her notification to DCP following the incident on 14/15 March 2020 she did not inform DCP of some very significant information. The mother said in her affidavit that she was not asked about this information but, in view of my assessment of its importance, I am not satisfied that the mother’s explanation is frank. X was assessed on 16 March 2020, the day after he returned from his father's home, by Ms B, a clinical, educational and developmental psychologist. Ms B diagnosed X as suffering from Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder. In her report she says "X has a history of exposure to domestic violence" but no particulars of the domestic violence are provided in the report. Nowhere in that assessment does Ms B posit the opinion that X has been exposed to domestic violence perpetrated by his father. The report observes that the mother reported seeing X return from weekend visits with his father “in an agitated state" but there is no other indication that Ms B considered the father's conduct as causative of the child's disorder. The report recorded that on 10 March 2020, one week before the incident between X and his father, that the mother had attended at the Women And Children’s Health Network Emergency Department with "visible scratching and bruising to her arms" from X. She recorded the mother as saying in an email to her on 31 March 2020:
We are all miserable and desperate and no one can help. I don't even know how we are going to make it until the end of April. He behaves at school in his appointments but at home he explodes over the slightest thing. He trashes the house. He hurts me and his sister. I can't keep making appointment after appointment. Waiting and waiting. Meanwhile, things just keep getting worse. I need to know what to do at home now. How to prevent this from happening.
Nowhere in the DCP is material there any indication that the mother informed DCP of this episode with X one week before the incident with his father.
It is clear enough from the material that X is or was a child with severe behavioural problems. There is some limited evidence of an assault involving both the mother and the father as perpetrators against each other and carried out in the presence of the children which is referred to above. There is otherwise little or no evidence of the children being exposed to family violence. Undoubtedly, this is a case where there is entrenched conflict between the parents with little or no effective communication by them about the children. I do not doubt that the children have been exposed to a high level of parental conflict.
I am far from satisfied that the conclusions of DCP about the father are justified by any evidence. On the contrary, it appears to me if the mother had provided DCP with a fuller description of the issues concerning X, DCP may have been more cautious about reaching conclusions.
The mother relied on a further report from Ms B dated 23 February 2021. The report records the purpose of providing the report as follows:
Ms Ravena moved with two children to Melbourne on June 21, 2020. She contacted me on 3.2.2021 to say that on 2.2.2021 she was “served legal documents from X’s father's lawyer. They are applying to get me to return the children to Adelaide in 14 days and for him to commence supervised visits with the children.” She asked me whether I was able to provide “a letter discussing X's behaviour at home and attitude toward school and anything else you feel is relevant why we were seeing you in Adelaide.” She has also asked his psychologist in Melbourne to write a letter about how he is doing. She is hoping the letters might “show a judge that moving to Melbourne has been a positive change from X.”
The report went on to say that Ms B, who has not seen X since February 2020, compared some teacher questionnaires completed by X’s teacher in 2019 and another in February 2021. She said a comparison of the results from the "Adelaide Connors Teacher’s Rating Scale" showed a "marked improvement in his emotional/behavioural presentation." The report said that X:
… was displaying his distress regarding his access visits with his father in his externalising behaviours. From the current report of his schoolteacher, it would appear that X has settled considerably since he was seen in early 2020, with new friends, compliant behaviour and good effort with his schoolwork.
The change in X's emotional/behavioural presentation since moving to Melbourne supports the view that X is considerably more relaxed since moving to Melbourne, with the removal of the possibility that he will be sent to his father's for access visits.
That conclusion is to be contrasted with the observations made about X and his relationship with his father in her earlier report. The earlier report did not link X’s emotional/behavioural presentation to the "possibility that he will be sent to his father's for access visits”. I give Ms B report limited weight.
At the earlier hearing I made orders that the parents were to enrol in children's contact centres in both Melbourne and Adelaide. It appears that the enrolment in the contact centre in Melbourne has been delayed for some reason which has not been adequately explained. The children have spent time with the father on only one occasion since the mother's relocation in June 2020. In the absence of any possibility of the children spending time with the father at a contact centre in Melbourne, the children spent time with the father for some hours during the day under the supervision of the mother's brother. Consequently, there is not, as I had hoped, any record of an independent observation of the children with the father. This is disappointing. However, the mother in her most recent affidavit records X as saying after returning from seeing his father, "It wasn't as bad as I thought it would be".
Regrettably, due to pandemic restrictions it has not been possible for the father to travel easily to Victoria, if at all. Similarly, it is not practical for the mother and the children to travel to Adelaide at the moment. I consider that a family report is necessary in this matter. In particular, I consider that there needs to be a closer examination of the relationship between the children and their father and the issue of the father's parenting skills and capacity to manage a child such as X with quite severe behavioural problems. I am not satisfied the father is necessarily well-equipped in that regard. Having said that, I am not satisfied, for reasons that I gave in my earlier decision, that there ought to be an order for a psychiatric assessment of the father. It seems to me unlikely that that will produce anything of real relevance or significance. The mother also seeks an order that the father attend an "anger management" program. While I think the father would definitely benefit from tools that will help him deal with X, I am not satisfied that it is strictly a matter of "anger management".
The father urges an order for the mother to relocate to Adelaide, pending trial. The mother seeks an order that she be permitted to remain living in Melbourne and seeks a transfer of the matter to the Melbourne registry of the Court. The independent children's lawyer submitted that there ought to be an order for a family report and an expedited trial. She did not support an order for the mother to return to Adelaide on an interim basis pending trial. She pointed out that such a change may be temporary and unduly disruptive. I generally agree with the submissions of independent children's lawyer about that.
Because of the changes going on in the Court and the disappearance of the “docket” system this matter may not be heard by me at trial. I will take what steps I can to ensure that a family report is prepared as soon as possible and a trial date is allocated as soon as possible after that is completed. Pandemic restrictions also introduce uncertainty and will affect how the family report is prepared. I do not propose to make an order for transfer to the Melbourne registry at this stage.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 14 September 2021
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