SILVER & PILOT
[2020] FamCA 691
•3 August 2020
FAMILY COURT OF AUSTRALIA
| SILVER & PILOT | [2020] FamCA 691 |
| FAMILY LAW – PARENTING – where one party capitulates immediately before a final hearing and indicates acceptances of recommendations for final orders completely at odds with her case up until that time – where the Court is unable to be confident that the capitulating party has the commitment and capacity to follow through with orders in those terms – where Family Consultant recommends a supplementary assessment to address viability of that parent’s proposal going forward. FAMILY LAW – PARENTING – high parental conflict – common feature of high parental conflict cases is a consensual resolution to avoid of judicial scrutiny and accountability – where conclusion of proceedings rarely brings an end to high parental conflict – where case management principles must give way to prolongation of proceedings where children’s best interests are served by doing so. FAMILY LAW – PARENTING – where immediate post-order support for families on implementation of parenting arrangements is best facilitated within the court – s65L supervised counselling for assistance with implementation of orders not available due to lack of resources. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Silver |
| RESPONDENT: | Ms Pilot |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lia |
| FILE NUMBER: | MLC | 10303 | of | 2018 |
| DATE DELIVERED: | 3 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 3 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Devries |
| SOLICITOR FOR THE APPLICANT: | Heinz & Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Kiernan |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Jenkinson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Sarah Lia |
Orders
That all extant applications be adjourned to 27 October 2020 for final hearing and be listed initially for 4 days.
That the extant parenting proceedings be adjourned to 19 October 2020 for directions as to filing updated affidavit material and any further directions for trial provided that, if the updated Family Report has not been released the parties may obtain an administrative adjournment of this date to a date after which the report will be available to the parties.
The undated Case Outline of the mother be marked Exhibit “P1” and remain on the Court file NOTING THAT the Case Outline of the father was filed on 30 July 2020. The Case Outline of the Independent Children's Lawyer was filed on 30 July 2020.
That all previous orders for the children Y born … 2017 and X born … 2017 to spend time and communicate with the father be discharged.
That the children spend time with their father as follows:
(a) Commencing 8 August 2020, from 10am on Saturday until 4pm on Sunday each week;
(b) Commencing 5 September 2020, from 1.00pm on Friday from childcare if the children attend childcare on Friday, until 4pm on Sunday each week. If the children do not attend childcare, the time start at 10.00am on Friday; and
(c) Such further or other times as agreed.
The changeover point for spending time occur as follows:
(a) At the children’s childcare where possible;
(b) At the N City Contact Centre (run by N City Services) in the event that the children are not attending childcare; and
(c) In the event that the children are not attending childcare and the N City Contact Centre (run by N City Services) is unavailable, at the front entrance to the Suburb L McDonald’s.
In the event that changeover does not take place at childcare or the contact centre, that changeover be effected by the parents themselves, and each parent be restrained from having more than one other person (and in any event none of the paternal or maternal grandparents) in attendance. Each parent be restrained from causing, permitting or suffering any other person in attendance from engaging with the other parent and, in the event that any of the paternal or maternal grandparents travel to the changeover point, the mother or father (as the case may be) ensure that any such grandparent remain in the vehicle at all times.
That pursuant to s 62G(2) of the Family Law Act 1975, the parents attend as directed upon Ms B, Family Consultant, for an updated Family Report, to assess the capacity of each of the parents to implement the interim parenting arrangements and/or the orders sought by the mother in her Case Outline being Exhibit “P1” and such other matters as the Family Consultant considers relevant. The interviews for the assessment for the Family Report occur on 15 September 2020, or such other date as is appointed by Child Dispute Services. The mother do all acts and things necessary to procure the attendance of the maternal grandparents at the assessment interview, as directed by the Family Consultant. The updated Family Report be released by not later than 16 October 2020.
The parents and any participant in the assessment for the updated Family Report be and is hereby restrained by injunction from causing, permitting or suffering any part of the assessment interview to be recorded and any recording made in contravention of this Order be and is hereby inadmissible as evidence in this proceeding.
That the mother continue to engage with Ms C, Director of M Centre, and the Independent Children's Lawyer provide Ms C with the following documents:
(a) The Family Report of Dr D dated 7 September 2019;
(b) The Family Report of Ms B dated 8 May 2020;
(c) The transcript of Family Consultant’s evidence this day;
(d) The affidavit of Dr F;
(e) The reasons for judgment of Her Honour Justice Bennett this day.
The Independent Children’s Lawyer nominate to the mother a counsellor for non-reportable therapeutic counselling to assist the mother in implementing the orders that the mother proposes be made on a final basis, provided that the mother is not under any compulsion to engage with the counsellor. If the mother notifies the Independent Children's Lawyer that she will engage with the counsellor, the Independent Children's Lawyer provide that counsellor with the following documents:
(a) The Family Report of Dr D dated 7 September 2019;
(b) The Family Report of Ms B dated 8 May 2020;
(c) The affidavit of Dr F;
(d) The reasons for judgment of Her Honour Justice Bennett this day;
(e) The transcript of the Family Consultant’s evidence this day;
(f)Such other documents as the Independent Children's Lawyer considers appropriate, with the Independent Children's Lawyer to notify the parties of the documents that have been provided.
If the mother attends upon a counsellor other than one recommended by the Independent Children's Lawyer, the mother be and is hereby at liberty to provide that counsellor or like professional with the following;-
(a) The Family Report of Dr D dated 7 September 2019;
(b) The Family Report of Ms B dated 8 May 2020;
(c) The affidavit of Dr F;
(d) The reasons for judgment of Her Honour Justice Bennett this day;
(e) The transcript of the Family Consultant’s evidence this day;
(f) Such other documents as the mother considers appropriate, with the mother to notify the parties of the documents that have been provided and to whom they have been provided.
That the Independent Children's Lawyer provide a copy of these orders to the child care centre attended by the children.
The evidence of Ms B, Family Consultant, given this day be transcribed and a copy sent to the parties to the proceedings as well as to the Director of Child Dispute Services and the original be placed on the Court file.
In the event that the Independent Children's Lawyer wishes to inspect the residence of either or both parents, she provide to each parent not less than three clear working days notice of her desire to inspect and each parent facilitate the inspection of their residence by the Independent Children's Lawyer. If a Certificate of Occupancy has been issued for the residence of a parent, that parent provide a copy of the Certificate of Occupancy to the Independent Children's Lawyer as soon as practicable.
The mother forthwith notify the father of the attendance of the children at childcare.
I reserve liberty to the parties (and any of them) to have this matter listed for mention urgently in relation to compliance with this Order.
In the event that any parenting application or contravention application that is filed between now and the final hearing, that application be placed before me as soon as practicable for directions.
My reasons for decision this day be transcribed and when transcribed a copy be made available to each of the parties and the original remain on the Court file.
The costs notification from P Lawyers to the mother dated 29 July 2020 be marked Exhibit “P2” and remain on the Court file.
The costs notification from Heinz & Partners to the father dated 28 July 2020 be marked Exhibit “F1” and remain on the Court file. The letter dated 31 July 2020 attaching the missing page to the affidavit of Professor H sworn or affirmed on be marked Exhibit “F2” and remain on the Court file.
The balance of the days for which this matter was listed, being 4 to 14 August 2020 inclusive, be and are hereby vacated.
AND IT IS NOTED THAT:
A.The Independent Children’s Lawyer requests that the father provide a Certificate of Occupancy for his home, and will be requesting that same be provided prior to the children spending periods of time longer than two consecutive nights with the father.
B.The father does not currently have a Certificate of Occupancy for his home, and states that he will not be able to obtain one in the foreseeable future.
C.The mother requests that the father provide a Certificate of Occupancy prior to the hearing on 27 October.
D.The father asserts that no Certificate of Occupancy has issued for the dwelling in which the mother and children currently reside.
E.The Independent Children's Lawyer will give consideration to the appointment of a further FDRS event to facilitate the parents preparing for outcomes in this proceeding and, possibly, resolving the matters in issue between them.
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 Silver & Pilot 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 MELBOURNE |
FILE NUMBER: MLC 10303 of 2018
| Mr Silver |
Applicant
And
| Ms Pilot |
Respondent
And
INDEPENDENT CHILDREN'S LAWYER
REVISED EX TEMPORE REASONS FOR JUDGMENT
(Amendment in paragraph 3 line 1 - 28 August 2020)
This matter comes before me as the first day of a 10 day hearing of parenting proceedings concerning the three-year-old boys Y and X. These are long‑running parenting proceedings with an extremely high level of parental conflict and which have, I note, been described by one of the single expert witnesses, Dr D, as [71]:
This report has been one of the most complex and difficult the writer has written in the past decade or so. In particular, it has been difficult because of the competing sets of extraordinary claims and counterclaims about the parties’ respective personalities and related behaviours when they were together, and especially the credibility of the mother’s unrelenting strong allegations that the father is so emotionally unstable and prone to extreme verbal and physical aggression that he represents an ongoing risk to the children’s everyday welfare.
With the consent of the parties, I directed that the Family Consultant, Ms B, who prepared the section 62G report dated 8 May 2020 be called as the first witness in the proceeding in addition to being called as the last witness in the proceeding. The parties and I had the benefit of hearing from Ms B this morning at 10 am. Immediately before hearing from Ms B it was drawn to my attention that the mother’s outline of case sought orders quite at odds with her response and her affidavit material, which is voluminous.
In the family report, Ms B, described the mother as being unable to envisage or tolerate overnight or extended time between the children and the father, or words to like effect. However, the mother’s position of which I was notified this morning was that she embraced the recommendations of the Family Consultant and going forward that the children could see the father weekly, including overnight, for three months and then for a more extended period. It is a massive and fundamental change in position by the mother.
In the mother’s material and up until this morning, the mother has sought to restrict the children’s time with the father based on her experience of the father as a perpetrator of family violence. Her allegations against the father extend beyond severe family violence and verbal abuse, coercive and controlling behaviour, to include:
a)rape of her;
b)smothering her with a pillow to her face;
c)smothering her by sitting on her face when she was asleep;
d)getting someone else to rape her (which she posits might have led to the conception of Y and X);
e)drugging the children or one of them;
f)sexual abuse of the children or one of them;
g)bruising the children;
h)raising his fist to the children;
i)killing pets of intimate partners;
j)torturing pets of intimate partners;
k)killing animals;
l)treating the children like pets;
m)threatening to shoot the mother.
RECORDED : NOT TRANSCRIBED
The mother’s new position was made known to me only this morning but her case outline which contains it as annexure A of “orders sought by the respondent mother” was attempted to be filed on Friday. It was apparently quarantined by the Court’s IT network and was only received by Chambers this morning. Mr Kiernan, counsel for the mother, conceded that his understanding is that his client’s new position was only adopted as of last week when the outline was filed. Therefore, it is not a situation where the mother has held this new position some time ago and merely not communicated it to any other party.
Counsel for the mother informed the Court that the mother no longer considers that the children spending time with the father represents an unacceptable risk to the children or either of them.
It is a worrying case. The purpose of calling Ms B to give evidence first was my concern that the parties needed to prepare for the outcome of proceedings. This is not a case of mistaken views or misinterpretations. One of the parents is lying and lying a lot. Indeed, both parents might by lying, but one of them is grossly misrepresenting facts more so than the other party.
The best interests of the children require that the Court have regard to the basis upon which the mother has capitulated and now seeks final orders completely at odds with her case up until last Friday.
It would be irresponsible for the Court to assume that whilst the mother is today prepared to agree to orders which were recommended by the Family Consultant, that the mother’s capitulation may not be able to be taken at face value, coming as it does so very late in the proceedings and contrary to all of the evidence upon which the mother had hitherto relied.
In my experience, it is not unusual for high conflict cases, such as this case, to not proceed to a final hearing. Parties to high parental conflict disputes frequently settle their litigation just before the hearing so as to avoid judicial scrutiny of their position. In a case management sense, the litigation is brought to an end but, in reality, it is just paused because nothing within the conflictual parental relationship has been addressed. Even worse, the parties are no longer under the scrutiny of the Court. It goes without saying that in such cases at least one of the parents is more interested in realising their goal, preserving their fire power than acting in a manner consistent with the children’s best interests, although that party’s case will be dressed up as a best interests case. This current case has all the hallmarks of those unfortunate high parental conflict cases which I have described.
The mother’s case was supported not just by her own voluminous evidence, which I think had one affidavit running to some 600 pages (I am corrected by Mr Kiernan that the body of the affidavit, the narrative, was only 100 pages; 500 pages were annexures). Her case was supported by long affidavits by her parents and by one friend. There are also the affidavits of two former partners of the father who make serious allegations of family violence perpetrated by him against them. All these deponents for the mother have obviously invested an enormous amount of time and concern on behalf of the children.
Given that the mother’s change of heart is very recent, I am satisfied that the Court must proceed cautiously. Our case management guidelines are focused on bringing cases to conclusion as soon as possible because usually it is in the interest of litigants and children to do so. However, with high conflict cases such as this case, a quick resolution is frequently illusory and does little to address the underlying toxicity in the parents’ relationship or provide relief for the children. I am satisfied that the best interests of the children require that the proceeding should be handled in a more unconventional way. The mother’s change of heart should be the subject of a further assessment by Ms B and the children should spend more time with the father, both as to frequency and duration.
The Family Consultant’s evidence given today will be transcribed. I will not repeat it here.
Whilst the questioning of the Family Consultant could fairly be described predicated on the mother’s mindset and behaviour as being at the root of the conflict, that is because it is not necessary to concentrate on the alternatives. There was no focus on preparing for outcomes if the father is found to have perpetrated the gross family violence alleged by the mother. I have no difficulty in principle that if he has done what the mother has said there would be little or no face to face contact or involvement by him in the lives of the boys.
In light of the mother’s capitulation, it was productive to hear from the Family Consultant about the reasoning behind recommendations that she had made in the event that the father is not found to have engaged in the conduct alleged by the mother. The Family Consultant is curious as to what was responsible for the mother’s change of heart and change of position. She agreed that it would be most appropriate to reassess the situation from the perspective of parental capacity to implement the orders to which the mother now agrees.
Child Dispute Services can make Ms B available to complete an updated report by seeing the parties and the maternal grandparents on 15 September, and that report will be available for release in mid-October. Fortuitously, I have four free days in October, and so I have set the matter down to commence before me on 27 October. I can only give it four days at this stage, but it may be that I have more time at the end. I am not saying that this case is one that will necessarily be contained within four days if it runs. Indeed, I think it will take considerably longer than four days.
There is a mention date soon after the supplementary family report is due to be released.
It is important that by that mention date the parties have read and digested the supplementary family report. If the supplementary family report isn’t available, the Independent Children’s Lawyer can arrange for an adjournment administratively to a more convenient date.
The Independent Children's Lawyer supported the supplementary report being prepared. I compliment Ms Lia on the excellent outline of case filed in this proceeding.
There then fell for consideration what should happen to the time to be spent between now and the matter returning to Court in October. Whereas there was some discussion around finessing a parenting arrangement, the parenting arrangement that dominated the discussion and one which I think best serves the interests of the children, was in line with that proposed by the mother and the Independent Children’s Lawyer rather than the father. I have ordered a version of the mother’s proposal for a final resolution as an interim resolution but accelerated the rate at which time spent increases.
The father for his part maintains his case that he should be the primary caregiver of the children, and nothing that he has done today should be interpreted as in any way relinquishing that position. It was, however, the family report writer’s evidence that to change interim residence of the children suddenly to the father, who has had only daytime time with the children in recent years, would be destabilising for the children and likely to be of itself emotionally harmful. The family report writer also agreed that the mother may not be able to cope with the boys spending time with the father even on a reduced time to be spent basis. Any alteration would have to be more gradual.
From the father’s perspective, the orders made today may be the beginning of that gradual transition. From the mother’s perspective it may well be the high watermark of the father’s ultimate entitlement.
The parties have largely agreed on the interim arrangements, and I have made orders to that effect. The other issue that was discussed with the Family Consultant is the kind of support that the mother needs or should get to assist her to alter what was obviously a very fixed mindset.
The Family Consultant described most of the professionals from whom the mother derives support (and evidence) as being practitioners who assume that the mother’s allegations of family violence are believed. The one exception was the child and healthcare nurse, Ms C. Ms C swore an affidavit which was filed in the proceedings on 23 April 2020. The Family Consultant characterised her input as, in effect, level-headed and sensible and a constructive one for the children.
The orders provide that the mother continue to engage with Ms C.
The orders also provide that the Independent Children’s Lawyer make a recommendation or nomination of a therapeutic counsellor or like professional to assist the mother in being able to implement the order which I make today. There was some debate about that. It was ultimately agreed by all parties that the mother is not to be compelled to do this but merely to be given the name of a professional who she can use if she wishes to do so. In the event that she does retain such professional, she is to be able to give them documents in the proceedings which would inform them in part of the context within which the counselling or therapy is being undertaken.
RECORDED : NOT TRANSCRIBED
I note that there appears to already be an Order prohibiting the mother if not the mother and the father from taking the children for assessment by a social scientist for the purpose of obtaining evidence in these proceedings. That Order continues in full force and effect. One of the concerning elements of this case is that the Department of Health and Human Services has a concern that the mother will inappropriately have the children treated or seek out medical evidence in support of her case for the purpose of these proceedings rather than for the health and wellbeing of the children.
The children’s transition from the limited time to more frequent and time will not necessarily be easy. It will be difficult for the adults. I am left wondering how the mother will rationalise her position taken today with each of her own parents and her friend Mr J and her witnesses Ms G and Ms K. It will also be a considerable change for the children. I do not expect it to be plain sailing. I would caution either parent against reading too much into how the children react. All children react differently, but a common theme for families in a situation like this family is that children are intuitive and clever and they will readily act the way that a parent wants them to act. That can mean, in some destructive situations, a child will act in accordance with the expectation of a parent rather than authentically.
I will reserve liberty to apply so the parties can have the matter relisted if needs be. There is not to be any missed time in the event that the children are ill. It does not seem to me that the children should not be sent in any event. If something occurred and time with the father was missed, I would expect it to be made up.
There will be an order that the mother forthwith notify the father of the attendance of the children at childcare. This is because childcare figures not only in the day to day arrangements of the children, but in the arrangements for changeover for the children, and if they do go to childcare in regional Victoria, every second week will be an occasion where the father collects the children from childcare. That, in my estimation, will provide the children with a reasonable and much needed buffer between their parents.
I am satisfied that the interim arrangements provided for in these orders are consistent with the best interests of the children and the concessions which each parent is prepared to make this day.
RECORDED : NOT TRANSCRIBED
It occurs to me that it may have been possible to proceed with the hearing if the Court had some ability to provide post-order support for families. Section 65L of the Family Law Act 1975 (“the Act”) provides, inter alia, for compliance with a parenting order to be supervised by a family consultant. However, this has not been an order that Melbourne Judges have been able to make for years now because any such order will not or cannot be supported by Child Dispute Services. My understanding is that s 65L fell into disuse after the 2006 amendments which obligated Family Consultants to make referrals to outside agencies and the role of our Family Consultants became exclusively forensic.
The benefits of offering post-order support to families is accepted. However, the support which is available within the community, from Family Relationship centres and the like, is too remote from the Court process to provide post-order family support soon enough and authoritatively enough after orders are made. Community centres lack coercive powers to make family members attend. There were no coercive powers under s 65L either but support offered within the Court system lent it a certain authority. The s 65L Family Consultant could be required to report directly to the Court on difficulties with implementation of parenting orders which facilitated timely intervention rather than waiting for difficulties to escalate. The public and private resources which are put into obtaining orders for parenting arrangements is disproportionately high when compared to the resources which are put into effective post-order support for families involved in litigation in the family courts. Bringing immediate post-order support for families back into the Court would, in my view, reduce the recidivism we experience in the cases beset with high parental conflict and better protect children from the harmful effects of such conflict.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 August 2020.
Associate:
Date: 21 August 2020
2
0
1