Russell and Withers & Anor (No 3)

[2020] FamCA 641

FAMILY COURT OF AUSTRALIA

RUSSELL & WITHERS AND ANOR (NO. 3) [2020] FamCA 641

FAMILY LAW – CHILDREN – Interim parenting application – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Russell

1st RESPONDENT: Mr Withers

2nd RESPONDENT: Ms Russell Snr

INDEPENDENT CHILDREN’S LAWYER: Ms J Lloyd

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 24 July 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Neil, QC

SOLICITOR FOR THE APPLICANT: Horowitz & Bilinksy

SOLICITOR FOR THE 1ST RESPONDENT: Self-representing

SOLICITOR FOR THE 2ND RESPONDENT: Self-representing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Behrens

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

1. Accordingly, the interim orders sought by the Mother are dismissed, rather order 15 as sought by the ICL will be made.

2. I discharge the order that the rules of evidence apply to these proceedings.

3. I direct that Ms Russell Snr and the Mother are to file and serve a single consolidated affidavit annexing to that affidavit the documents that they intend to rely upon, providing at the start of those documents an index of those documents and causing such to be paginated from themselves and each witness they intend to rely upon by no later than 4 pm on 30 September 2020.

4. I direct that the Father file and serve a single consolidated affidavit annexing to that affidavit the documents he intends to rely upon, providing at the start of those documents an index of those documents and causing such to be paginated from himself and each witness he intends to rely upon by no later than 4 pm on 28 October 2020.

5. The Mother and Ms Russell Snr may file an affidavit strictly in reply to fresh issues arising from the Father's affidavit material by no later than 4 pm on 11 November 2020.

6. No party may file or serve material other than in accordance with these directions without first obtaining the leave of the Court, to be sought by means of the filing of an Application in a Case.

7. That in the event the Family Consultant is able to accommodate face-to-face interviews and observation of the children an updated family report be prepared and available prior to the final hearing dates.

IT IS NOTED THAT

1. It is anticipated that the Family Consultant will be able to conduct such interviews at the end of August 2020.

IT IS FURTHER ORDERED THAT

1. In the event that the Family Consultant is unable to accommodate face-to-face interviews then the parties are at liberty to seek an urgent relisting of the matter.

2. The ICL may issue such subpoenas as are necessary for the proper preparation of the matter provided none is made returnable later than 28 days before the trial.

3. Any other party seeking to issue subpoenas must first obtain the leave of the Registrar and prior to seeking such leave must enquire of the ICL whether the ICL has or will issue a subpoena to the relevant entity. 

4. Within 28 days each of Mr Withers and Ms Russell is to file and serve a Financial Statement noting that there is a live issue as is likely to include the capacity of the parties to fund international travel.

5. The Father will continue to ensure the attendance of A and B upon BC Group for the purposes of therapeutic counselling. 

6. The parties will facilitate the attendance of A and B upon the ICL for the purposes of answering any questions which they may have about these proceedings. 

IT IS NOTED THAT

1. It is requested of the ICL that such attendance take place promptly.

IT IS FURTHER ORDERED THAT

1. All of the parties are restrained from speaking with the children or either of them in relation to these proceedings except for the purposes of explaining to them that the ICL will meet with them to answer any questions they may have and in the event that the Family Consultant is to meet with the children again to explain that is to occur.

2. The final orders of his Honour Justice Watts made 20 September 2016 continue save that the children will not be required to travel internationally until the restrictions on travel imposed by the government of the Commonwealth of Australia are relaxed and there is liberty to apply on seven days’ notice in relation to any issues which will arise in that regard.

IT IS NOTED THAT

1. It is intended to list this matter for seven days trial at the end of 2020 or start of 2021.

IT IS ORDERED THAT

1. The matter is listed for further directions to 10:30 am on 16 November 2020 and the parties are to attend on that occasion via Microsoft teams.

IT IS NOTED THAT

1. The above date is allocated on the basis that the filing of material should be complete by that date. 

IT IS FURTHER ORDERED THAT

1. The parties are prohibited from initiating contact with Chambers unless:

   (a)Such contact has first been initiated by Chambers staff with the party; or

   (b)The contact with Chambers is with the prior joint permission of all parties, noting that simply CCing other parties into the communication does not constitute such permission.

IT IS NOTED THAT

1. Ms Russell Snr advises the Court that no part of her application to the Court will involve any argument about either of the parties bearing any expense in relation to any time that she might spend with the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Withers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 223 of 2015

Ms Russell

Applicant

And

Mr Withers

Respondent

And

Ms Russell Snr

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, I am asked to deal with an application to amend the final orders on an interim basis pending final hearing and to make procedural directions to prepare the matter for final hearing. 

2. There are currently final orders that were made on 20 September 2016.  In general terms, they provided for the Father to have sole parental responsibility, subject to conditions, for the parties’ two children, A aged 10 and B aged 8.  A and B, pursuant to those orders, live with the Father.  The Mother is usually resident in the United States of America (the USA), but when she is present in Australia the general regime provided for in the orders is for her to have alternate weekends from Friday through to Monday and alternative Tuesday evenings.   I have been told by the parties that this has been varied by agreement between them, such that her time occurs on alternate weekends from the Friday through to the Tuesday providing for one block each fortnight rather than two sets of time.  The Mother is also able to nominate, when she is in Australia, two one-week periods each term for the children to spend block time with her.  There is also provision for school holidays and special occasions.  When the Mother is not in Australia, the orders provide for travel to the USA for the children. 

3. The orders, under those circumstances, also provide for the maternal grandmother to have each fourth weekend during term time from a Friday to a Monday.  That is when the Mother is not otherwise exercising fortnightly time. 

4. Provision is also made for electronic communication. 

5. The Mother pursues interim orders, some of which are contained in her Amended Initiating Application filed 20 February 2020, although she amended the interim orders that she seeks in respect of the time that she is to spend with the children.  She seeks an order for equally shared parental responsibility, subject to particular conditions as to its exercise, and also the suspension of the current provisions about her time for which there should be substituted a series of dates leading up to October 2020 when she says she will again depart to the USA.  She accepts, as is proposed by the Independent Children's Lawyer (the ICL), that at present there should be no overseas travel for the children under the current COVID-19 circumstances facing Australia and the USA. She also seeks orders in respect of the children attending therapy and medical attendances for the children. 

6. The maternal grandmother orally sought orders during submissions for the children to attend tutoring each week, the basis put forward by her is that she asserts that this is a required approach as the children are lagging in their education.  She points to a number of matters which are identified by her in her affidavit material; however, the Independent Children’s Lawyer pointed to school reports for both A and B contained in the ICL’s tender bundle.  Those school reports do not paint a picture justifying such an extreme step as imposing the condition by order that the Father cause the children to attend on the maternal grandmother for the purpose of tutoring.  The school reports indicate predominantly that the children are performing at standard.  The orders will not be made.

7. As noted, the Mother's application to amend the orders comes in the context of final orders having been made.  It also comes in the context that I have made orders permitting the reopening of proceedings and the listing at a date yet to be determined of the matter for a fresh final hearing.  The further context is although the Mother resides in the USA, she is temporarily present in Australia. 

8. A further context is that the material that the parties have placed before the Court to date alleges a self-harm risk on the part of A and B and the allegation that A has threatened to kill herself.  The context also involves self-harm alleged in respect of A and B. There are allegations of inadequacies in the Father's parenting, both in his capacity to care for children generally and, in particular, in his provision of psychological support for the children given the above harm risks that are alleged, and in the dental care for the children.  The children have also expressed a view that they wish to live with their Mother and have expressed that they have some issues with their Father. 

9. The family report that has been prepared for this week's proceedings described A as depressed and emotionally vulnerable. 

10. The causal factors for these matters, as well as a number of the factors, are contentious in the interim context of this application. 

11. The further context that should be identified is that a subpoena was returned from an organisation called BC Group upon whom the Father is attending with the children for their psychological support.  It tends to points towards the Father presently obtaining appropriate psychological support for the children.  At present, then the children are exhibiting vulnerabilities and particular views.  The causes for such are contentious. 

12. What remains non-contentious in the proceedings is that there is a high degree of conflict and mistrust between the parties and a likelihood or risk of the exposure of children to such. 

13. Interim proceedings are governed by the same legislative scheme as final proceedings. That is the best interests of the children are the paramount consideration and they are to be established by reference to the considerations set out at s 60CC of the Family Law Act 1975 (Cth). It is also the case that there is a presumption in favour of equally shared parental responsibility and that if an order is to be made for equally shared parental responsibility, there is a particular pathway of consideration.

14. In interim proceedings, the Full Court has emphasised that the trial judge is to rely as much as possible on noncontroversial or corroborated material.  The trial judge is to avoid being drawn into the overall dispute between the parties due to the incapacity of a trial judge in interim proceedings where the evidence is not fully tested to resolve contested facts.  Despite those approaches, it is still incumbent upon a trial judge to assess risks, even where there is uncertainty about those risks.

15. Here, in determining the matter, I am assisted by the presence of final orders within which the evidence has been fully tested, albeit final orders made in 2016.  Those final orders were made in large part to protect the children from the then established risk that the Mother would end their relationship with the Father.  They were structured to provide opportunities for the children to reap the benefits of meaningful relationship with both parents. 

16. In the Mother's case, she pursues specific dates in a departure from the orders made by Justice Watts’s orders which already allow for substantial and significant time, including two blocks of one week period each term on the Mother's nomination. In pursuit of such orders, the Mother points to no particular factor that demonstrates that such will better provide for the interests of the children.  She does not show how they might deal with the vulnerabilities that have been suggested, nor the conflict between the parties and in any event, what is proposed would merely be a stop get pending her return to the USA. 

17. I pause now to note that despite a dispute between the parties as to whether or not the Mother has given sufficient notice to the Father to exercise one of those block periods commencing 24 August 2020, the Father agrees that the Mother should be able to do so. 

18. The Mother pursues equally shared parental responsibility.  As the ICL notes, that was not the order made by Justice Watts.  Since Justice Watts’ orders, if anything, the position has worsened.  The question has to be posed that in what way could an increase in the requirement of the parents to cooperate not result in conflict spilling onto the children?  The changes proposed by the Mother, pending her travelling to the USA in October 2020 should not be granted as they have not been demonstrated to be in the children's best interests. 

19. The Mother also pursued reportable therapy, although not vigorously in the face of the therapy that is currently taking place.  The ICL opposed a fresh set of therapy for the children, noting that the children have been in a therapeutic relationship with BC Group and developed relationships with the counsellor.  That arrangement should be maintained.  Although the Mother sought a restraint upon the parties attending upon such counselling, other than at the request of the therapist, a basis for such an injunction has not, at present, been established on the evidence.  It will be a matter for the therapist who attends. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 July 2020.

Associate: 

Date:  27 July 2020