RODGERS and RIGLEY
[2019] FCWA 164
•23 JULY 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: RODGERS and RIGLEY [2019] FCWA 164
CORAM: DUNCANSON J
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 23 JULY 2019
FILE NO/S: PTW 2090 of 2012
BETWEEN: MR RODGERS
Applicant
AND
MS RIGLEY
Respondent
AND
MR SUIT
Proposed Intervenor
Catchwords:
COSTS - Proposed intervenor wholly unsuccessful - Conduct
Legislation:
Family Court Act 1997 (WA), Div 11A, s 117, s 237
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms D Taylor |
| Respondent | : | Ms R Watson |
| Proposed Intervenor | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Ms C |
Solicitors:
| Applicant | : | Kavanagh Lawyers |
| Respondent | : | Bowen Buchbinder Vilensky |
| Proposed Intervenor | : | Self-Represented Litigant |
| Independent Children's Lawyer | : | Legal Aid WA |
Case(s) referred to in decision(s):
Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Greedy & Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Luadaka & Luadaka (1998) FLC 92-830
Madin v Palis (Costs) (2016) 55 Fam LR 59
McAlpine & McAlpine (1993) FLC 92-411
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rodgers & Rigley has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1These proceedings concern the child [A], born [in] 2012. A is seven years of age. She lives with the mother, [Ms Rigley]. Orders have been made that she spend time with the father, [Mr Rodgers].
2After her birth, A spent supervised time with the father. In May 2016 A ceased spending time with the father as the mother alleged inappropriate sexual behaviour on his part. The father denied the allegation which was not substantiated by the WA Police and as it then was the Department for Child Protection and Family Services. In August 2016 the father commenced these proceedings seeking parenting orders, including that A spend unsupervised time with him.
3[Dr B] was appointed Single Expert Witness.
4Upon Dr B's recommendation orders were made that A spend time with the father unsupervised. Further allegations were made and supervision reinstated. Dr B provided an updated report. The allegations were not substantiated.
5In April 2018 A's time with the father became unsupervised and Dr B provided a third report dated 13 August 2018.
6The proceedings were listed for trial not before 30 October 2018. The matter came before the Court on 19 October where by consent, the trial was vacated. It was ordered that the professionals involved at that time being, Dr B the Single Expert, [Ms G], the mother’s therapist, [Ms D], A's therapist and [Ms E] the family therapist, should meet and confer in relation to the commencement and establishment of A's overnight time with the father.
7The conference of professionals took place on 24 October 2018. They agreed a number of matters including that the father and child relationship was good and as such, an increase to overnight time was viable. The family therapist recommended overnights immediately, whereas the other professionals sought a lead-in period of two months to put in place strategies to help A cope. The professionals did not rule out A making further allegations, which, if made, should be reported to the Independent Children’s Lawyer, Ms C.
8I refer to this background in detail, as it is clear that there were a number of qualified professionals involved in assessing A's relationship with the father and providing their recommendations for increased time with them.
9On 31 October 2018, orders were made not by consent, in terms of a Minute which provided for A's time to spend with the father each Tuesday and Thursday after school, or 3.00 pm if not a school day, until 6.30 pm, and each Sunday from 9.00 am to 5.30 pm. The professionals were to meet again and confer with a view to the time progressing to overnight. The father was at liberty to attend the school. The matter was again included in the call-over. These orders although not by consent, were largely agreed to by the parties. It is important to note that the professionals involved in A's care made recommendations with which these orders were consistent. The mother did not oppose these orders. At that time her counsel said she accepted and supported the establishment of overnight unsupervised contact. The ICL supported these orders. The father agreed to these orders, subject to some minor variations, but not the principle of them which was that A should spend unsupervised time with him.
10I refer to this background because as set out below, the proposed intervenor [Mr Suit] refers to harm to A which occurred in November 2018, shortly after these orders were made.
11This matter is now awaiting trial. The court has received no further information from the ICL or the experts, except for a report from the Safe Balance Child Contact Service handed up in Court today.
12The application before the Court is an application in a case filed by Mr Suit on 20 February 2019. Mr Suit seeks an order that he be granted leave to intervene in the proceedings and be added as a party.
13Mr Suit deposes that he is the father of two girls who are school friends of A. He says A is a regular visitor to his home and she and he, have developed an appropriate relationship and that A likes and trusts him. Mr Suit says A asks for him when she refuses to go with her father. He says he took A home from school on 8, 20 and 22 November and 4 December 2018, presumably days when the father was to collect A. At paragraph seven of his affidavit, Mr Suit deposes:
As a result of my observations of [A], statements made by [A], and statements made by my children, I have formed a reasonable belief that [A] was the subject of serious abuse during November 2018.
14Mr Suit does not specify what this abuse was. He reported his beliefs to the Deputy Principal of the school, and to Legal Aid. Mr Suit says he takes A to court-ordered handovers. He says the current arrangements for contact between A and her father are harmful to A, who exhibits signs of distress prior to visits. Mr Suit says, notwithstanding his belief of the possibility of abuse, he understands the importance of A's relationship with the father. He is of the view that the father should receive guidance and assistance. He offers to participate in supervised contact arrangements between A and the father, and he attaches to his affidavit a schedule of orders which he proposes will achieve the re-establishment of relationship between A and her father. Mr Suit concludes his affidavit by saying he makes his application to the court reluctantly, but everything he has observed provides evidence that the system has failed and is causing harm to A.
15The orders proposed by Mr Suit are summarised as follows:
•A's time with her father be suspended.
•Mr Suit be given leave to file affidavits from other persons, which are to be provided to the expert witnesses, about events which have occurred subsequent to 1 November 2018 and which are relevant to further contact between A and her father.
•The court to direct the Single Expert Witness to provide the father with recommendations for a suitably qualified psychologist, and the court recommend to the father that he attend weekly.
•Mr Suit to consult with A regarding supervised contact and provide a proposal for consideration by a meeting of the expert witnesses.
•The experts meet to review that information and provide a recommendation regarding the proposal and guidance to the supervisors.
16Mr Suit deposes that he reported his beliefs regarding A to the Deputy Principal of A's school by way of letter which he attaches to his affidavit. In this letter he reported he had observed certain behaviours on the part of A, including anxiety, sadness, resistance to contact, disclosure of involvement in sexual activity indirectly to her friend and he had been told about bedwetting.
17Mr Suit wrote to the Legal Aid on 17 December 2018, informing Legal Aid that he had formed a reasonable belief that A is the subject of sexual abuse by her father based solely on his observations of A, observations of her interactions with her father and statements made by A in his presence.
18He also referred to a possible breach of s 124F of the Children and Community Services Act 2004. This relates to confidentiality of a reporter's identity. He concluded that the father has had unlawful access to the advice he provided to the police. Mr Suit said he was reconsidering the assistance he provides to the mother in complying with court orders, because of concerns for A's safety, that of his own, and his children, and concerns that he wishes to act ethically and protect his relationship with A. Mr Suit sought information from the Legal Aid about this. The ICL wrote to him on 24 December 2018 and informed him that, as he is not a party to the proceedings, she was unable to comment, but she provided a copy of his letter to the solicitors for the parties.
19Mr Suit responded to the ICL's letter on 30 January 2019, informing her that he might apply to intervene, but in the alternative he offered to meet the Single Expert Witness. He was aware that the professionals were to meet in early February to make further recommendations. He reiterated that the only way for A to have a relationship with the father was for it to be supervised and he stated in his letter to the ICL, "To be clear, my belief remains that serious abuse occurred during unsupervised visits late last year."
20Mr Suit subsequently filed the application which is before the Court. The father opposes Mr Suit's application for reasons which include the following: his intervention may delay the proceedings, which would in turn result in more harm to A; Mr Suit is not a key or significant person in A's life; Mr Suit does not seek orders to spend time with A.
21The father explains that family therapy ceased on 14 December 2018, as the family therapist, Ms E, withdrew from the matter. Since Christmas A has only spent time with the father once, on 24 March 2019, which was an occasion on which they thoroughly enjoyed their time together. The father no longer attends A's school to collect her, as A refuses to go with him.
22Most recently on 11 April 2019, the father attended A's school and accompanied A and the mother to a nearby park. He hopes this will lead to A spending time with him again.
23The father deposes he does not know Mr Suit, yet he notes Mr Suit has been present on 24 out of 32 possible days when A should have spent time with him. A began refusing to see the father in December 2018, which the father says coincides with Mr Suit's involvement in this matter.
24The father points out that Mr Suit's proposal is one made by a person with no knowledge of the litigation history and no psychological or legal training. The father is concerned that Mr Suit is doing harm to A as he suspects that the father has engaged in "serious abuse" of A. The father is concerned that Mr Suit may be reaffirming to A that this has occurred and that the father is a risk to her.
25Additionally, the father is concerned that Mr Suit has been provided with confidential information in these proceedings. For example, Mr Suit knew of a conference of professionals which was to occur in February 2019. The father is concerned that the mother has provided Mr Suit with this information.
26The father annexes to his affidavit a letter from Ms E to the ICL dated 14 December 2018. In contrast to the evidence of Mr Suit as to events on 13 November 2018, as set out at paragraph 13 of his affidavit, Ms E stated in her said letter:
The last joint therapy session with [A] and Father on 13 November after school pick up was once again engaging and playful as [A] was giving her father English lesson on the whiteboard. On the way to the car [A] climbed and had a ride on her Father’s back.
27Ms E states in her letter it is clear the mother did not wish to continue engaging in therapy with her. She refers to A being immersed in a situation where family members deem the other parent guilty of allegations, which would greatly effect A's relationship with her father. Ms E also opines the way in which handover is managed provides cues of safety or risk to A. Ms E refers to a shift in the grandparents' and mother's belief which is confusing and stressful for A.
28Ms E concludes her letter saying she has noticed A has a fun and loving relationship with both of her parents.
THE LAW
29Sections 208 and 209 of the Family Court Act 1997 (WA) ("the Act") provide as follows:
208. Intervention by other persons — FLA s. 92
(1)Any person may apply for leave to intervene in any proceedings under this Act, and the court hearing the proceedings may make an order entitling that person to intervene in the proceedings.
(2)An order under this section may be made upon such conditions as the court hearing the proceedings thinks fit.
(3)If a person intervenes in proceedings by leave of a court the person is, unless the court otherwise orders, to be treated as a party to the proceedings with all the rights, duties and liabilities of a party.
209. Intervention in child abuse cases — FLA s. 92A
(1)This section applies to proceedings under this Act in which it has been alleged that a child has been abused or is at risk of being abused.
(2)Each of the following persons is entitled to intervene in the proceedings referred to in subsection (1) —
(a)a guardian of the child;
(b)a parent of the child with whom the child lives;
(c)a person with whom the child is to live under a parenting order;
(d)a person who has parental responsibility for the child under a parenting order;
(e)any other person responsible for the child’s care, welfare and development;
(f)the CEO;
(g)a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
(3)If a person intervenes under this section in proceedings the person is, unless the court hearing the proceedings otherwise orders, to be treated as a party to the proceedings with all the rights, duties and liabilities of a party.
30Pursuant to s 209(2) certain persons are entitled to intervene in proceedings in which it has been alleged that a child has been abused or is at risk of being abused, including as set out at (e) any other person responsible for the child's care, welfare and development.
31Mr Suit is the parent of A's friends. A does not live with him. He is not a person responsible for making decisions about her day-to-day or long-term care. He is not responsible for her financially. All of the above are duties and responsibilities of her parents, who are the parties to the proceedings, and both of whom seek parenting orders. I find that Mr Suit is not a person who is entitled to intervene, pursuant to s 209 of the Act.
32Section 208 of the Act provides for intervention by other persons and pursuant to s 208(1) any person may apply for leave to intervene in any proceedings under the Act. That is the application I have before me in that Mr Suit seeks leave to intervene in the proceedings.
DISCUSSION
33Mr Suit's application sets out the reasons why he applies to intervene, and I refer above to my summary of his evidence. Mr Suit does not specify precisely the factual basis of his belief that A was the subject of serious abuse in November 2018. When asked by me, he agreed this information was not in the affidavit upon which he relies on in these proceedings.
34It is not clear to me whether Mr Suit's application is made in consultation with the mother, although he indicated that it was not. She did not oppose the orders which are currently in place for unsupervised time between A and the father. As to Mr Suit's application, the mother neither consents nor opposes it. It is unclear to me, although I think it unlikely, that Mr Suit's interests are different or separate to those of the mother. It would appear not.
35Mr Suit does not seek a parenting order in respect of A in his application, although in submissions he said he wants orders for A to see the father with him present as part of her trusted network. This is not a parenting order as defined by s 84(1) of the Act.
36It appears Mr Suit has knowledge of these proceedings. I am unsure of the extent to which he has obtained that information from the mother. He said he did not know what orders the mother sought in the proceedings.
37In the event Mr Suit is given permission to intervene, a consequence of that intervention is that he will have access to all of the material filed in the proceedings, including documents produced on subpoena. This is of concern, given his relationship with A is that of a parent of school friends.
38These parenting proceedings have been conducted between the parties with the assistance of an ICL, a Single Expert and three professionals. Most recently, orders were made largely with the consent of the parties and always upon the advice of the Single Expert and treating professionals. It appears from Mr Suit's application that he wishes to, if not take control of, at least play a significant part in the ongoing arrangements between A and her father.
39Mr Suit is not an expert, and yet he opines as to matters which not he, but the Single Expert and professionals involved in this matter are qualified to do. He also professes to having detailed knowledge of A's mental health and wellbeing. He gives opinions and conclusions on matters in respect of which he is not professionally qualified: for example, that the present arrangements for contact between A and the father are harmful to A and that the father should receive guidance and assistance in developing their relationship. He offers a framework of supervision. He believes the father should voluntarily and regularly attend a psychologist, as recommended by the Single Expert. He opines that the system has failed and is causing harm to A. Some of the evidence of Mr Suit is in contrast to that of the family therapist.
40Division 11A of the Act sets out the principles for conducting child related proceedings. Section 202B(7) of the Act provides that the proceedings are, as far as possible, to be conducted in a way which will promote cooperative and child focused parenting by the parties. That principle does not support Mr Suit's application.
41For reasons discussed above, I have concluded that I should not grant Mr Suit's application to intervene. I refuse it.
42I now turn to the orders sought in the response filed by the father on 18 April 2019.
43Paragraph 2 of the orders sought by the father is in the following terms:
The Respondent Mother be restrained by injunction and an injunction be hereby granted restraining her from:
a)Giving an account of these proceedings to [Mr Suit] including but not limited to: identifying experts and their opinions/findings, identifying issues of law or facts in dispute, identifying persons who provide evidence (in reports or affidavits), identifying any agencies involved and any evidence in reports or affidavits and discussing these proceedings or matters ancillary to these proceedings;
(b)Encouraging, facilitating or otherwise permitting any other person to give an account of these proceedings as per paragraph 2(a) above;
(c)Permitting [Mr Suit] to attend handover or time with ordered by the court or agreed between the parties;
(d)Permitting, encouraging or otherwise allowing [Mr Suit] to discuss these proceedings with [A].
(e)Allowing [A] to have any contact with [Mr Suit].
44I intend to make orders in terms of paragraphs 2(a) to (d) inclusive.
45I will make them on a without admission basis, notwithstanding the evidence that the mother had informed Mr Suit of a conference of professionals to take place in February. It was explained that was done in circumstances where Mr Suit was involved in A's handover arrangements and the mother was incapacitated at the time.
46In refusing, at this time, the order sought by the father that the mother be restrained by injunction from allowing A to have any contact with Mr Suit, I have borne in mind the very sensible proposal of the ICL which was that Mr Suit should be encouraged to provide to her documents or evidence, which he has in relation to his concerns. I bear in mind the ICL's offer to issue subpoenas where appropriate and also her suggestion that if the parties agree, the Single Expert may speak to other persons, including Mr Suit. It appears to me that the appropriate role for Mr Suit to take in this matter, if any, would be that of a witness who should provide evidence as to what he has seen and heard, rather than his opinion and conclusions.
THE ORDERS
1The Form 2 Application filed by the proposed intervener, [MR SUIT] on 20 February 2019 be dismissed.
2On a without admission basis, the Respondent, [MS RIGLEY] be restrained and an injunction is hereby granted restraining her from:
(a)giving an account of these proceedings to [Mr Suit], including but not limited to:
(i)identifying experts and their opinions/findings;
(ii)identifying issues of law or facts in dispute;
(iii)identifying persons who provide evidence (in reports or affidavits);
(iv)identifying any agencies involved and any evidence in reports or affidavits; and
(v)discussing these proceedings or matters ancillary to these proceedings;
(b)encouraging, facilitating or otherwise permitting any other person to give an account of these proceedings as per order 2(a) above;
(c)permitting [Mr Suit] to attend handover or time with ordered by the Court or agreed between the parties; and
(d)permitting, encouraging or otherwise allowing [Mr Suit] to discuss these proceedings with the child, [A], born [in] 2012.
3Paragraph 2(e) of the Form 2A Response filed by the Applicant, [MR RODGERS] stand adjourned generally.
4In the event the Applicant seeks an order for costs from the proposed intervener, he file submissions within 28 days.
5Within 28 days of service, the proposed intervener shall file a response to the submissions for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate8 MAY 2019
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