Regna & Eline
[2024] FedCFamC1F 161
•29 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Regna & Eline [2024] FedCFamC1F 161
File number(s): BRC 12601 of 2021 Judgment of: BAUMANN J Date of judgment: 29 February 2024 Catchwords: FAMILY LAW – PARENTING – Interim Hearing – Orders were made for the children to recommence spending time with the mother Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 29 February 2024 Place: Townsville Solicitor for the Applicant: A P Hodgson & Associates Counsel for the Respondent: Mr A Christie Solicitor for the Respondent: Brett Smith & Co Solicitors Counsel for the Independent Children's Lawyer: Ms D Pendergast Solicitor for the Independent Children's Lawyer: Norman & Kingston ORDERS
BRC 12601 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR REGNA
Applicant
AND: MS ELINE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the parents have equal shared parental responsibility for the children, X born 2011, Y born 2013 and Z born 2014 (“the children”).
2.That the children shall live with the parents on a week about basis with changeover to occur each Friday at the conclusion of school, or 3.00pm on a non-school day.
3.That the father shall deliver the children to the mother at McDonalds Suburb B at 4.30pm on Friday, 1 March 2024.
4.That the father deliver all of the children’s school uniforms and such other clothing, school equipment and other items reasonably requested by the children.
5.That the parent delivering the children is to depart from the vicinity of the McDonalds Suburb B immediately after delivering the children.
6.That the children’s school uniforms and such other clothing, school equipment and other items reasonably requested by the children shall be delivered to the other parent each week by delivery to the children’s respective schools each Friday morning in a clean condition.
7.That in the event any of the children are not in the care of the parent with whom they are meant to be with pursuant to this Order (‘the first parent”), then the other parent (“the second parent”) shall:
(a)inform the first parent by text message that the second parent shall deliver the child or children to the first parent;
(b)deliver the children to the first parent at the McDonalds restaurant as set out below;
(c)deliver the child or children by 5.00pm that day;
(d)if the mother if the first parent, then delivery shall occur at McDonalds Suburb C; and
(e)if the father if the first parent, then delivery shall occur at McDonalds Suburb D.
8.That the parents shall, within twenty four (24) hours, inform the other parent of their mobile telephone number.
9.That the parents shall communicate with each other by text message only and the communication shall be in relation to the children only.
10.That the mother be and his hereby restrained from permitting the children from having any contact, direct or indirect, with Mr E, for a period of six (6) weeks from the date of these Orders.
11.That the mother shall ensure that none of the children are left in the sole care of Mr E.
12.That the parents shall ensure the children continue to attend F School and G School.
Procedural orders
13.That the parents shall attend, and ensure the children attend, upon Ms H as and when directed by the Independent Children’s Lawyer in writing.
14.That the father shall ensure the child, J attends the interviews with Ms H.
15.That the mother shall ensure Mr E attends the interview with Ms H.
16.That these proceedings be adjourned for Case Management Hearing (and for the Court to consider what further trial material, if any, the Court requires the parties to file for the Final Hearing listed in August 2024) approximately seven (7) days after the production of the family report to be prepared by Ms H, in the Federal Circuit and Family Court of Australia (Division 1).
17.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 6 August 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
18.That the Independent Children’s Lawyer be at liberty to apply.
IT IS NOTED:
A.That the children will not be attending their extracurricular today, 1 March 2024.
B.That the Independent Children’s Lawyer will advise the chambers of Justice Baumann (…@...) once the family report has been produced.
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 by this Court under the pseudonym Regna & Eline has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The parents of three children, X, now aged 12 years; Y, now aged 11 years, and Z, a little girl aged nine years, were a part of a dysfunctional relationship that commenced in 2010 and resulted in final separation in August 2015. At the time of separation, X was four years of age, Y was two years of age, and Z was approximately one year old.
At cohabitation, the mother was the biological mother of three other children – Mr K, who is now aged 18 years, J, who is now aged 16 years, and L, who is now approximately 13 years of age. Those children were the product of a relationship with three separate male persons.
The Court is being asked to consider, on an urgent and interim basis, variations to interim Orders in circumstances which, for conciseness, I will describe quickly, namely:
(a)after final separation, the father was successful in obtaining a domestic violence order against the mother, but nonetheless, in June 2016, consent orders were made as were sought by the parents for the children to live in a week-about arrangement;
(b)there have always been allegations raised by the father about the mother being abusive to the children;
(c)the father says that this arose initially from a relationship with a Mr M, which was somewhat destructive. The father says in March 2019, he was informed by the Department of Communities, Child Safety and Disability Services (“the Department”) that the mother should spend no time with the children. Despite difficulties, again, it seems, without court order, the parties put in place a return to the week-about arrangement in approximately September 2019; and
(d)when the mother formed a relationship with Mr E, with whom she still, in some form, cohabitates, the father became concerned with what, he says, the children were telling him, and accordingly, in February 2021 he withheld the children from the mother. He filed an Application in the Federal Circuit and Family Court of Australia (Division 2) on 16 September 2021. In early 2022, L, the youngest of the mother’s children from her earlier relationships, relocated to live with her biological father in City N.
That the relationship between the mother and Mr E was problematic is at least in part demonstrated by the domestic violence order taken out in early 2022. The first judicial officer to deal with the matter, a Senior Judicial Registrar in April 2022, made Orders that the children live with the father, as they then were, and that the mother have supervised time. Despite other orders of a similar nature; involvement by J seeking to intervene in the proceedings and other attempts at time being ordered to allow the children to see their mother, I am satisfied that, effectively, the three children, X, Y and Z, have spent no substantial time with the mother now for over three years – at least since February 2021.
The highly competent Independent Children’s Lawyer caused the parents to be the subject of a psychiatric assessment by consulting a psychiatrist, Dr P. Obviously, Dr P’s evidence is untested, but it is worth observing that the general opinion of Dr P was that the mother did not present with any mental health issues of significance, but there were significant concerns expressed about the father’s attitude to the children; his relationship with the mother and what could be described in a general sense as behaviour that could be construed as alienating.
The Independent Children’s Lawyer procured a family report from social worker Ms H, arising from interviews, with that report being dated 29 September 2022. It had not been updated for the trial, for reasons which the parties understand. Ms H expressed some significant concerns about the father. Ms H, who was not given the opportunity (it would seem) to observe the children with their mother, identified at paragraph 13.7 that the father, in her view, would not support the children having a relationship with the mother. Concerns about the role that J was playing in the family (she being very negative about her mother) were also expressed.
On 27 January 2023, the proceedings were transferred to Division 1. On that same day, and sensibly so in my respectful view, the Senior Judicial Registrar made an order for a Section 65L report. Ms Q, a family consultant at the Brisbane registry, provided the report in respect of three visits, that report being dated 19 April 2023. Her assessment and recommendations – bearing in mind that this is the most recent independent assessment of the children, their wishes and the situation generally (noting the report of Ms H had not been updated) – was as follows:
(a)At paragraph 53:
Throughout the three visits the mother related to the children in a warm, gentle, respectful and patient manner. She made appropriate efforts to engage with them and to try and provide activities that they might enjoy. I did not have any concerns about her interactions with the children.
(b)At paragraph 54:
With regard to the father’s willingness and capacity to promote and encourage the relationship between the children and their mother, my assessment is the father is neither willing nor able to facilitate such a relationship. He is worried that the children’s physical and mental health will be jeopardised if they spend time with her. He does not see any benefit in the children having a relationship with her. He does not respect the mother as either the mother of the children or as a co-parent. He clearly shares his negative views about her with the children.
(c)At paragraph 55:
My assessment of the observations of the supervised visits is that the children are acutely aware of their father’s expectations about how they should relate to their mother and that they are determined to “perform” in a manner that reflects his expectations. Although [Z’s] interactions with her mother fairly quickly softened in the first two visits, by the third visit she had reverted to her initial presentation of refusing to relate to her mother.
(d)At paragraph 56:
With regard to my recommendations about future time between the mother and the children, my recommendation is that while the children live with their father, that they do not spend any time with their mother.
(e)At paragraph 57:
Firstly, it seems likely the father will simply not facilitate the time and he will make various claims about why the time cannot or did not occur.
(f)At paragraph 58:
Secondly, even if the children do manage to spend time with their mother, there is no information to suggest that they will feel free to enjoy this time with her. This will place them under on-going emotional pressure.
(g)At paragraph 59:
The father shares his very negative views about the mother with the children and the children are strongly aligned with him. It is not uncommon for children of high conflict parents to align themselves with the resident parent in order to protect themselves.
(h)At paragraph 60:
Although I have not been asked to comment on the phone calls that are occurring between the mother and the children, I respectfully suggest that these do not continue. There is no positive communication occurring between the mother and the children. In fact, the children are using the calls to verbally and emotionally abuse the mother and this is not in the best interests of either the children or the mother.
I note that report was made on 19 April 2023, almost 12 months ago.
It was hardly surprising, therefore, that when the matter came before me for the first time in September 2023, I did my best to expedite a hearing of these very difficult issues about the parenting of these three children. The matter was listed for trial to commence on 12 February 2024. Orders for s 102NA representation were made and had been taken up. It is a matter of record to note that when the matter came on for hearing before me on 12 February 2024, I was confronted with a considered application by Counsel for the Independent Children’s Lawyer, Ms Pendergast, that the trial had to be adjourned. In short, this was in view of her submissions based on the failure of the father to disclose at least:
(a)a serious medical event/overdose in mid-2023;
(b)continued poor attendance by the children at school; and
(c)concerns arising from school records of the quality of care being provided by the father to the children, whether shaped by lack of finance, his poor health and, to some extent, the way in which he relied upon J to undertake the parenting role.
It was clearly not desirable to adjourn the trial, however I was persuaded that there was no other option, but that I should, as a result, list the matter for an interim hearing after both the mother and father filed further affidavits setting out certain particulars that were raised of concerns of the Court, in particular:
(a)from the father’s point of view, clarity as to his medical and/or health condition and any treatment he has received, and also an explanation as to the school situation; and
(b)from the mother’s point of view, how she would manage what would be a significant change for the children, from the home of the father to the home of the mother, especially against their expressed wishes.
Consistent with setting the matter down for an interim hearing, with all Counsel who appeared before me today – Ms Pendergast for the Independent Children’s Lawyer; Mr Christie for the mother and Ms Chekirova for the father (all appearing by Microsoft Teams or telephone from Brisbane whilst the Court was sitting in Townsville) – the parties identified, as directed, competing proposals on an interim basis.
In that regard, the Independent Children’s Lawyer and mother urged the Court to make an immediate change of residence order, effective tomorrow, 1 March 2024. That was to be followed by a period of some six weeks where the children would not spend time or communicate with the father, after which, on the Independent Children’s Lawyer’s proposal, time would remain supervised for a period before progressing to unsupervised day time.
The father’s proposition in his minute of order was consistent with his first proposition at the trial, namely that the children continue to live with him; that he have sole parental responsibility, and that “the children spend time with the mother as agreed between the parents upon the wishes of the children”.
Lest there be any doubt, this is not a case where I would ever feel comfortable making an order for these three children, X, Y and Z, that time with the mother was only to occur consistent with their wishes. Their wishes have been expressed and the way in which those wishes have been shaped is clearly a matter for the trial.
The interim hearing today began with Ms Pendergast very carefully and methodically taking the Court through the bundle of Department of Education records that were tendered as Exhibit 1 on 12 February 2024. In these Reasons, delivered ex tempore, I do not propose to record all those submissions of Ms Pendergast, save to say that the way in which she identified the matters recorded by the school about what the children were telling their guidance officer or their teachers about what was clearly dysfunction in the father’s household, are very concerning.
It became apparent that there was an event in mid-2023 and perhaps subsequent events when the father’s health, be it merely physical health or emotional health, had caused him to attend hospital. He did not make any proper disclosure of these events in his trial affidavit, nor did he, it seems to me, provide any clarity about what we now know to be, arising from the school’s mandatory notifications to the Department, an event that took place in late 2023, when the Department discussed the situation with the father and, at that stage, his likely partner, Ms R. I say that because the nature of that relationship is very uncertain and not assisted by the somewhat careful way in which Ms R swore evidence in her affidavit, filed 20 December 2023. That will be a matter for the trial, no doubt.
What can be said, however, is that alert to the concerns, it seems at least on the evidence that as at late 2023, the Department did not choose to intervene. I am not bound, of course, by any such decision by the Department, but I do not ignore it. I am not certain that they had a full understanding of the events of mid-2023. I am comfortably able to say that the father, in my view, even in his most recent affidavit, has not fulsomely disclosed the full extent of his medical situation and that is more likely to be clarified by the additional subpoena that had been issued recently by and on behalf of the Independent Children’s Lawyer.
Ms Chekirova, for the father, says the father has done in a short, limited period of time, the best he can to put relevant evidence before the Court for this urgent interim hearing. I still hold concerns that the father may ultimately be found to have not made full disclosure and/or has minimised the effect on his household of his medical condition. It seems, at least, that the father was alert to the concerns the Department might have when he is recorded (in the notes to which I was directed by Ms Pendergast) to a comment to the effect that if the Department knew about the “overdose”, the children would be removed from his care.
The school records, as Ms Pendergast observed, reveal less than optimal attendance at school by the children, but the reasons at times for their non-attendance is still yet to be clarified. It is critically important that these children attend school. The mother, in her alternate proposal, says that if the children live with her, they will maintain their schooling at the current location, at least until the trial, which I have been able list to commence on 6 August 2024, a date after which there is likely to be an updated report from Ms H available.
The competing proposals today in this interim hearing have already been identified. After hearing substantial submissions, the Court, as it is bound to do in accordance with authority, identified a third alternative. The Court expressed it, I think fairly, as being a proposition which is “out there” – namely, one that neither party had considered and which some might suggest was without foundation or likelihood of success. That was, that commencing tomorrow, the three children begin (in some ways) to return to arrangements which they had previously had as their history earlier identified demonstrated, to a week-about arrangement. Ms Chekirova, on behalf of the father, indicated that the father would not oppose that arrangement.
In that regard, the father may well be, and time might demonstrate whether this is the case or not, taking the view that the children will ultimately resist the arrangement and that he will be seen as doing the “right thing” because the judge has suggested it rather than making an order in the best interests of the children. However, if I am to take the father’s instructions to his Counsel at its highest, this alternative, which was one identified in the father’s trial material as an alternate final order, must bring with it an acceptance by the father that he will use every endeavour and genuinely support the children living in a week-about arrangement.
I well understand why the mother, who has been hurt emotionally and distressed significantly by the lack of time with her children now for nearly three years, might be encouraged to seek an order that the children live with her as some way of either making the point to the father or “compensating” her for all the time she has missed. These parents are in a highly toxic relationship, and I accept that communication between them is almost non-existent. I listened carefully to the opposition to such a proposal enunciated by Ms Pendergast on behalf of the Independent Children’s Lawyer. The Court, of course, is not bound by the submissions of the Independent Children’s Lawyer, but would not deviate from them in most cases on an interim basis without good reason.
In my view, considering all the submissions I have heard, I have formed the view that as from tomorrow, these children will be ordered to live in a week-about arrangement until the trial before me.
I do not underestimate that if the father does not genuinely support the children living on a week-about arrangement between he and the mother, that it could break down very quickly. If that were to occur, the Independent Children’s Lawyer having leave to relist the matter, the Court may have no other alternative but to revisit the very strong submissions made by the Independent Children’s Lawyer, supported by the mother, that the children live primarily with the mother and, in fact, exclusively for a period. However, in my view, notwithstanding the very serious concerns about the father’s behaviour, uncertainties about his parenting capacity and his mental health, I have come to the conclusion on an interim basis that the children reconnecting with their mother in a substantial way offers the best alternative if it can occur.
It will take a lot of work by the mother and father. The mother could, for example, use the opportunity of spending more time with the children, and with a trial pending, to undermine the father who has been, on the facts, the primary carer for over three years. I have no doubt that a decision like this would not make J happy. But that is not the test. The father would be tested about his capacity to support the children’s relationship with the mother. In making this order, I take into account that there are some concerns in the mother’s household, but in my view, on the untested evidence, not of the magnitude that would cause me to restrict the mother to supervised time, as has been ordered but not taken place for nearly three years.
Some of those concerns in the mother’s home, apart from her attitude and capacity to adjust and manage the children’s distress and adjustment to a change of living arrangements from exclusive care to shared care, involve her partner. In that regard, the Independent Children’s Lawyer set out in proposed orders 9 and 10 an arrangement that would allow the mother some period of time to settle the children down in her care (order 9), but that after a period of time (in those orders 6 weeks), the mother would ensure that none of the children are left in the sole care of Mr E. The mother did not cavil with that order on an interim basis. Whether that is an order that will survive the trial will depend on the evidence at the time.
Clearly, there is a lot more evidence that will need to come to the Court about the father’s medical condition. But one of the factors which has caused me to adopt the alternate proposal rather than the two stark proposals put before the Court is a significant concern about how these children, who for at least three years have not been required to confront reuniting with their mother, reconnecting with her and spending time with her, would react to a decision on an interim basis that they live exclusively with her almost from tomorrow. The fact that the mother anticipated that could be a problem is in some way reflected in the orders that she sought on an interim basis at paragraphs 7, 8, 9 and 10 of her interim order, namely that the Court make a recovery order.
In the context of this case, and the history of this matter, I would not lightly send the Australian Federal Police or their delegate, the Queensland Police Service, to recover and return these children. I am giving these parents an opportunity to do better. I do so not because I think it will be easy for them to do so, but because the best interests of their children demand it of them. If, despite, perhaps, what could be described as my level of naïve confidence, in a short period of time the Independent Children’s Lawyer lists the matter before me because these orders that I make have in some way broken down, then perhaps my confidence will be unrewarded.
There is no part of our family law jurisprudence that involves visiting upon children the sins of their parents. The ultimate test that the Court is required by law to apply is what is in the best interests of these children.
In my view, it is in the best interests of these children that they be given a real opportunity to have a relationship with both parents. I recognise that there will be an effect on J, who is a member of the father’s household. I am aware that J was funded by Legal Aid Queensland at one stage to seek to intervene in these proceedings because, as I recall part of her application, she wanted to protect her younger siblings from her mother. That possible intervention was satisfied by Orders being made that J would not be required to spend time with her biological father, Mr T, or her biological mother contrary to her wishes. It will be a matter for the father to control and manage the behaviour of J in his household.
It is also, if you like, another factor which I hope may be of assistance long-term for these children, that if the father has some significant mental issues to deal with, then being relieved of the stress and anxiety that will inevitably arise from the primary, if not exclusive, care of children that will flow from an equal-time arrangement may give him an opportunity to properly get medical treatment. When the matter comes to trial, he can seek to satisfy the Court that the risks, which are at least raised by much of the material that Ms Pendergast has carefully taken me to, will not arise into the future.
There is always an uncertainty about future arrangements being shaped by past events. The past is problematic for this family, however they understand that this matter is very much in the shadow of the trial to commence in August. It remains in my docket. I remain available if required to relist this matter at the request of the Independent Children’s Lawyer if a substantial reason to do so arises.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 March 2024
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