REINES & REINES

[2020] FCCA 3177

FEDERAL CIRCUIT COURT OF AUSTRALIA

REINES & REINES [2020] FCCA 3177

Catchwords:
FAMILY LAW – Application for interim parenting arrangements for children aged 13 and 10 – father has retained care of the children in circumstances where he alleges they are at risk of physical and emotional abuse in the mother’s care – mother alleges that the father is acting opportunistically to reduce her time with the children – question of separate parenting arrangements being applied to the two children – assessment of risk in the context of an interim hearing – best interests of the children considered – matter transferred to the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 67Z

Cases cited:

Dieter & Dieter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4

Applicant: MR REINES

Respondent: MS REINES

File Number: ADC 2062 of 2015

Judgment of: Judge Brown

Hearing date: 6 August 2020

Date of Last Submission: 6 August 2020

Delivered at: Adelaide

Delivered on: 6 August 2020

REPRESENTATION

Counsel for the Applicant: Ms O’Connor SC

Solicitors for the Applicant: SE Lawyers

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Barnes Brinsley Shaw Family Lawyers & Mediators

THE COURT ORDERS THAT DURING THE PERIOD OF THE ADJOURNMENT:

1. That the children X born in 2007 and Y born in 2010 shall live with the parties during school term time as follows:

   (a)With the mother from 9.00am on Saturday until 5.30pm on Sunday each alternate weekend, commencing Saturday 8 August 2020;

   (b)With the father at all other times, save and except as provided for herein or as otherwise ordered.

2. That the children X and Y shall live with the parties during the September/October 2020 school holiday period as follows:

   (a)With the father from the conclusion of school on Friday 25 September 2020 until 4.00pm on Saturday 3 October 2020;

   (b)With the mother from 4.00pm on 3 October 2020 until the commencement of school on Monday 12 October 2020.

3. That following the receipt of the Family Assessment Report, the parties do exchange proposals within fourteen (14) days.

4. Until further or other order, on a without admission basis, the mother be restrained and an injunction granted restraining the mother from physically disciplining the children.

5. That the matter be transferred to the Family Court of Australia to be listed on a date and time to be advised to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Reines & Reines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2062 of 2015

MR REINES

Applicant

And

MS REINES

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally following the interim hearing concerned.  Due to the controversy of the case and the fact that it is being transferred to the Family Court and an independent children’s lawyer appointed, it is appropriate that the reasons be transcribed.

Introduction

1. This afternoon, I have to deal with competing interim applications in respect of two children.  The children are X, who was born in 2007, so X is 13 years of age; the other child is Y, who was born in 2010, so Y is 10 years of age. 

2. The parties to the proceedings are the children’s parents, their father, Mr Reines, who was born in 1981 and their mother, Ms Reines, who was born in 1979.  By occupation, I think, Mr Reines is a Manager and Ms Reines, I think, is a public servant.

3. The proceedings today are not being conducted in a very human focused way.  I acknowledge that.  Due to the pandemic crisis, there are restrictions on people coming into confined public spaces such as the courtroom in which I am currently sitting. 

4. For that reason, the hearing has been conducted on the telephone.  That is highly artificial and alienating for everyone concerned.  It would be preferable that I could see each of the parties concerned, but I cannot.

5. I am called upon to make a very significant decision this afternoon.  It is a decision which I would much prefer that I did not have to make.  I am very conscious that, just by making the decision, I will inflame what is already a very tense and difficult situation and that will, perhaps, result in the deferral of the parties themselves being in a position to make their own decisions in respect of their two children.

6. At the outset, I acknowledge that I have absolutely no doubt whatsoever that both Mr Reines, to whom I will refer to as the father in these reasons for judgment, and Ms Reines, to whom I will refer to as the mother, fervently love both X and Y, and each of them wants the best for the two children. 

7. In those circumstances, it is highly regrettable that in a context of conflict, crisis and acrimony it falls to me to make a decision.  I am called upon to make the decision at an interim or provisional stage.  I will explain what that means to the parties as best I can.

8. I have read all the affidavit material which has been filed in the case.  I have already read a number of expert reports.  The reports in question have been prepared by a psychiatrist, Dr B, whom Ms Reines consulted for forensic purposes. 

9. The other expert concerned is Ms C, who is a psychologist who has a practice of not only providing treatment and psychological support, but also preparing expert reports for families in conflict.

10. Although I have read all of that material carefully, in the context of an interim hearing I do not have time available to me to take extensive oral evidence from each of the parties concerned or the experts and, more significantly, see them being cross-examined about issues that are controversial in that material. 

11. It is through that process that a person in my position makes findings of fact about what did or did not happen.  It is through that process I make decisions about whether a particular expert’s methodology is flawed or mistaken or that he or she has not got something fundamentally wrong.

12. I cannot make findings of fact at this stage; however, I am still called upon to make a decision.  I have to bear in mind that the decision I make is of limited duration and it is based on limited material. 

13. In this context, the Full Court has directed that I should look at any issues that can be agreed, particularly previous care arrangements for children; however, the law is clear that where there are issues in dispute I should leave them to be resolved at a final hearing stage.  When that final hearing will be is unclear to me.  It may be some period of time away.

14. I point out to the parties, and I acknowledge that they have each invested a great deal in this present proceeding, which has been passionately argued by the very experienced counsel on both sides, but I ask each of them to bear in mind that the decision I make today is provisional, and will not be one which is in place for the indefinite future.

15. What is also striking about this matter is that the parties have not previously been compelled to come to Court to seek the Court’s adjudication in arrangements in respect of the care of their children. 

16. This must be regarded as significant and indicative that there has previously been a state of affairs between them which has been conducive to them making joint decisions in respect of X and Y.  It is also indicative of the intensity of the current crisis arising in the family.

17. They separated over six years ago.  I think I read in the papers that it was in March of 2014.  They have been divorced since August 2015.  In the period since their divorce, each of them has significantly moved on in their lives.

18. The mother remarried, but she is now divorced.  The father also remarried, and recently he and his current wife had twins, D and E, who were both born in 2020.  At an earlier stage, their property proceedings were quickly compromised with a consent order in December 2016. 

19. So what strikes me about that history is that the parties have hitherto done well in respect of sorting out their various issues and difficulties, and their children, it would appear to be the case, know each of their parents well and there can be no doubt that the children have spent a great deal of time in the care of each of their parents.

The proceedings to date

1. The father began these proceedings against a background of crisis on 18 May 2020.  He asked that his application be listed urgently.  The Registrar of the Court makes a decision as to when matters are listed, and it was given a date in July.  I suspect from Mr Reines’ perspective that that was not regarded as being satisfactory.  I do not know. 

2. Anyway, the date in July stood.  At that stage, the children were in his care alone, and from the mother’s perspective, he had acted arbitrarily and unilaterally in retaining the children.

3. There is no dispute, as I understand it, that following the parties’ separation in 2014 the children lived with their mother and spent overnight time with their father for five nights each fortnight and half of each school holidays; however, since July 2019 there have been what is commonly called a shared care regime, or equal time regime, in respect of X.  So the children, as I say, had been spending a lot of time with each of their parents.

4. It is a requirement of the Court’s rules that if somebody brings an application in respect of a child and if that party alleges that there has been some incident of child abuse or a risk of child abuse that, pursuant to section 67Z of the Family Law Act, such a person must file what is called a notice of risk, and Mr Reines filed such a notice of risk in respect of X and Y.

5. In answer to the question ‘has a child to whom the proceedings relate been abused’ he answered yes, and he gave some particulars.  He alleged that the mother had caused both children to suffer serious psychological harm as a result of the mother exposing the children to family violence and making repeated threats to commit suicide in the presence of the children.

6. He further alleged that X had disclosed that her mother had threatened to drive her car off a cliff and made regular verbal threats of suicide.  He also asserted that there had been the exposure of the children to family violence between the mother and her former second husband, Mr F, and that the children had been exposed to verbal and physical confrontation. 

7. So on that basis, it was the father’s position that the children were at risk of suffering serious psychological harm.  In his affidavit he has deposed as follows:

   “While I sincerely want to believe that the mother would never take any steps to physically harm the children, as I hope that nor does she have any real intention of following through on her threats to kill herself, I fear the situation is such that I must now take steps to protect the children in order to ensure their safety and well-being.  I am also concerned that the mother has failed to act protectively towards the children in the past during her marriage to Mr F.”[1]

   [1]  See father’s affidavit filed 13 May 2020 at [69]

8. The mother responded to the application on 27 May 2020.  She, too, wanted her application listed as quickly as possible, because it was her position that the Court should make what is called a delivery up order, that is that the children be delivered up to her care because, as I said earlier, from her perspective the father had acted unilaterally and arbitrarily.

9. In any event, the case remained as it was listed and in the meantime there was the exchange of much correspondence between the parties.  In addition, each of the parties changed their legal practitioners.  The mother, too, filed her own notice of risk. 

10. She asserted that during the parties’ relationship she had been subject to verbal, emotional and sexual abuse by the father.  It was her position that she had been denigrated on Instagram, which had originated in the father’s household.

11. Ms Lewis, counsel for the mother, has addressed me in respect of the Instagram and a photograph.  I have already expressed my concern that there is a risk that these proceedings become more infused with emotion than perhaps is necessary, but the import of the mother’s answering material was that the father was, really, engaged in a tactical and opportunistic tit for tat attack on her, which caused him to exaggerate the difficulties in her household in order, by necessary implication, to reduce her relationship with the children.

12. She alleged that the father undermined her role as a parent in the eyes of the children, discussed things inappropriately with X about the circumstances surrounding the emotionally potent end of the parties’ marriage, and she further alleged that there were issues regarding X’s access to social media and communications with children; boys of her own age. 

13. These, of course, are the issues of the day for all parents who have teenage children and who have to deal with the perils of the internet, although I do not wish to sound patronising or condescending in any way.  I acknowledge that in this particular time it is very difficult to be a parent.  It is a stressful time and technology has not made that any easier.

14. The parties sensibly, I think, with the assistance of their lawyers decided that they would see if they could co-opt an expert to throw some light on what was happening in their family, and I use that term advisedly.  The mother, father, X, Y and, indeed, the twins, are all part of the same family. 

15. The parties decided to co-opt an expert to see what was going on in their family.  That, of course, was Ms C, to whom I have already made reference.  Ms C conducted what she called a child inclusive conference.  The aim of this was to provide me (and indeed the parties) with some independent and expert insight into the reality of the familial situation surrounding X and Y.

16. The parties were interviewed via video link.  The children were interviewed separately and in person with feedback being provided by video link.  Ms C would not say that she provided a full family assessment report, but her report is, in my view, as comprehensive as is likely to be provided at an early stage of any proceedings such as these.  Although Ms C’s methodology is untested, in my assessment, her report must be categorised as being useful.

17. The children were interviewed.  X was talkative and articulate.  She clearly has been involved to some extent in some of the politics of the parties’ relationship and their separation.  She reported that until she was 10 years old Ms Reines had told her stuff about Mr Reines’ home which made her hate dad.  She reported a toxic relationship with Mr F.

18. Significantly, the child described being physically assaulted by Ms Reines, including being slapped across the face on multiple occasions.  The child acknowledged that her behaviour contributed to aspects of the conflict, but that her mother had slapped her. 

19. X said she perceived that her mother was now remorseful for her actions.  Of course, there can be no justification for a parent who is in a position of authority to physically assault a child, no matter, of course, how extenuating the circumstances are.

20. Y reported that Mr Reines was very nice and did not really yell or scream.  Y indicated that her mother struggled from time to time to control herself, and this normally occurred in respect of X.  Y also had a negative experience of Mr F, and she said that her mother had got married to a really not very good person, and this resulted in a lot of argument.

21. Accordingly, although I am not in a position to definitively understand how the relationship between X and her mother has become fractured, there is no doubt that it has, and the parties in that context have agreed that there will be a course of family therapy involving another expert, Ms H, who is a social worker by training, as I understand it.

22. On the other hand, although Y has also described some negative aspects of her mother’s conduct, she appears to be less critical of her mother, and indicated to Ms C that she was keen to return to residing in the primary care of Ms Reines, and was willing to have eight nights with mum, six nights with dad. 

23. Y became teary, when she provided this history.  She further noted that she wished to stay with Ms Reines more as her mother rarely engaged with arguments with her, and it was really calm, which was not always the situation when X was around.

24. The matter came into court on 21 July 2020.  Ms C had made a number of recommendations which the parties, to their credit, took up.  A more extensive family assessment was likely to be required, and the parties have put that into effect and that, as I understand it, is going to be done in September or October. 

25. She also recommended that the parties engage in family therapy to help address the relationship difficulties between X and her mother and, indeed, the issues of poor communication between them, and as I have said, that is also happening.

26. Those orders were made on 21 July.  More significantly, Ms C made a recommendation that in the interim, the children reside in the primary care of Mr Reines and spend time with Ms Reines every second weekend from Saturday morning until Sunday afternoon, with this time to be in the substantial presence of an approved supervisor, and provided that an additional weeknight dinner may be warranted.  The parties were not able to agree on that aspect of Ms C’s recommendations.

27. From the father’s perspective, he believes that the recommendations are appropriate.  The mother disagrees.  She feels that there should be no need for a supervisor, and given what are the views that have been expressed by Y, there should be a different regime for her as opposed to her older sister.

28. It is the effect of the mother’s case that she has behaved inappropriately, but that was not without its extenuating circumstances, that there were pressures in her household at the time the crisis erupted, including the pandemic and illness generally, and the pressures of a 13 year old child, who was behaving in an oppositional and unacceptable fashion. 

29. It is her position, and I am not in a position to make a concluded finding of fact one way or the other, that she has an effusive and ebullient personality; that she says things when emotion grips her, and she has no intention of following through on them. This, I take it, is how she explains what has been reported of her in regards to attempts at taking her life.

30. On the other hand, it is the father’s position that she has no insight at all into the consequences of her behaviour and she continues to represent a threat to the children concerned.  Accordingly, to a very large extent, this is a case about risk.  It is about assessing the risk that Ms Reines may or may not represent to these two children. 

The applicable legal principles

1. In assessing risk, I have to bear in mind the provisions of the Family Law Act and, in particular, those contained in Part VII of the Act.  In making any parenting order in respect of a child, both at an interim and final stage, I must regard the best interests of the child concerned as the paramount or most important consideration. 

2. The parties would, I think, be aware of that; however, my discretion in respect of how I determine a child’s best interests is more closely circumscribed by a list of matters in section 60CC of the Act.

3. That section delineates two categories of consideration that I have to take into account.  Firstly, primary considerations, and there are two of those.  Firstly, I have to consider the benefits to the child of having a meaningful relationship with both of the child’s parents and, secondly, I have to consider the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

4. Pursuant to section 60CC(2)(a), I am directed to give more weight to protective concerns. In general terms, my role is not to punish a person for past failings. My role is to be protective, notwithstanding any deficits in the evidence available to me. I am not in a position to defer my responsibility to assess risk to some later stage, because I do not have enough evidence.

1. There are a second category of matters I have to take into account.  They are categorised as additional considerations, and there are 14 of them. 

2. In a case such as this one, the additional considerations likely to be relevant are any views expressed by the child and any factors, such as the child’s maturity or level of understanding, relevant to the weight the Court should give to them.  

3. In the current case, Ms Reines places emphasis on Y’s views and points to the fact that she’s a 10 year old child who has lived in her mother’s main care for probably the majority of her life, as she recollects it.

4. I also have to consider the nature of the relationship the children have with each of their parents, and in a case like this one, it must be the case that the children have significant relationships with each of their parents, although, clearly, X’s relationship with her mother is under stress at the moment. 

5. I have to consider the likely effects of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, and in a case like this one, at first blush, there are issues potentially arising from there being separate arrangements for the two children concerned because of their idiosyncratic positions; however, one would expect that, although there may be tensions between the two siblings, they remain close to one another.

6. I also have to consider the capacity of each of the parents to provide for the needs of the child, including their emotional and intellectual needs.  The mother’s position is that she is more in tune with the child’s educational needs, given her background as a public servant, and it seems to be the case that the children are, like their mother, artistic by inclination. 

7. The father would assert that he is more in tune with the children’s emotional needs; that he is calmer.  Although I am not in a position to make any definitive finding at this stage, it would seem to be the case that the parties likely bring different strengths and attributes to the parenting of the children.

8. I have to consider family violence and any family violence order.  In this case, it would appear to be the case that there is no current order.  I would also have to consider the children’s cultural background. 

9. That’s not a pressing issue in this case at the present time, although I note that the parties have a different cultural tradition and the children are inheritors of a rich cultural tradition on both their father and mother’s side.  The mother, I think, is from Country J, but I do not know a great deal about that issue at this stage.

10. So I have to consider protective issues so far as the children are concerned.  From the father’s perspective, a proportionate response to the risk is to limit the time the children spend with their mother to one overnight on weekends every fortnight, but with a supervisor being present.  He proposes either the children’s maternal grandmother or grandfather, or their maternal aunt.

11. From the mother’s perspective, that is a disproportionate response to the degree of risk.  The Court is frequently called upon to assess all manner of potential risks for children.  Risk arises in every aspect of human endeavour, and I cannot make any child’s life completely safe.  I also have to be careful not to unduly truncate or damage important relationships because of a quest for an order that will avoid any potential degree of risk.

12. In a case called Dieter & Dieter[2] the Full Court directed that:

    “In assessing the degree of risk incumbent in any particular parenting scenario the Court must look to the degree of probability that a harmful event will occur in future and what will be its severity to any individual, particularly any child who will be potentially affected by it.”

    [2]  Dieter & Dieter [2011] FamCAFC 82

13. So I have to assess what is the risk that Ms Reines, if X and Y are with her, will lose her composure and strike or harm one or both of the children.  I then have to consider what is a proportionate response to the risk as identified. 

14. In a case called Slater & Light[3] the Full Court expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’.  It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”

    [3]  Slater & Light [2013] FamCAFC 4 at [37]

Discussion

1. In this case, I have come to the conclusion that it would not be an unacceptable risk for the children to interact with their mother in the presence of a supervisor.  I do not think a supervisor is warranted.  

2. At the same time, given the stressors incumbent in this particular family, I do not think it would be appropriate at this stage or in the children’s best interests for there to be a separate regime for each of them. 

3. I do not think that that will work, and I think there needs to be a settling over the comparatively short period of time whilst the family assessment report is prepared.

4. I am conscious that it is now 5.25pm and the hearing began at 4.00pm.  I am not sure for how long I have been giving these reasons, which, of course, are delivered orally.  I have not had the opportunity to reflect on the case overnight because of the pressures of my professional life.  I have other cases I have to deal with.

5. As I observed to one of the lawyers earlier, there is a lot about this case that causes me to have a sense of foreboding.  I, and this Court, are not set up to deal with the intense litigation that this case may possibly develop into.  I hope I am wrong in that. 

6. I am very concerned that in making an order that Ms Reines will disapprove of, and also that some aspects of which Mr Reines will disapprove, I will perpetuate the conflict between the parties. 

7. That will cause the children’s loyalties to their parents, already strained, to become even more strained, which will not be helpful for them.  It will derail the possibility of the family therapy being successful, because from my perspective that is what this family perhaps needs more than anything.

8. My function is to resolve disputes as best I can according to the principles of the Family Law Act.  I have endeavoured to do what I think is best for X and Y, whom I accept, as I have already said, are much loved children.  So I think it would be imprudent of me to do anything other than at this stage to refer the matter to the Family Court.

9. On that basis, I will make the orders which the father proposes, other than I will not make order 1.1.3 of his proposal regarding the need for supervision.  I will transfer the proceedings to the Family Court of Australia to be listed on a date to be fixed by the Registrar of the Court, and until further or other order, the injunction that was made on 21 July 2020, which restrained the mother from physically disciplining the children, will continue.

10. I am satisfied that these proceedings, of themselves, will have had a salutary effect on the mother, who has acknowledged these incidents, but for the reasons I have provided, I am of the view that to require her time to be supervised, even at a distance, is not proportionate to the risk. 

11. I acknowledge that Y has expressed a view to spend more time with her mother, but at this juncture, and whilst the waters, I hope, come to some form of equilibrium, I do not think it would be in the children’s best interests to have separate arrangements.

12. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 20 November 2020