Speck and Speck

[2019] FCCA 3051

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPECK & SPECK [2019] FCCA 3051

Catchwords:
FAMILY LAW – Parenting dispute – father seeking yet another adjournment of the trial – no certainty whatever that adjournment with enable father to be legally represented – adjournment refused – matter proceeding by way of oral submissions – no challenge to family report – dispute as to primary residence resolved as recommended by family report and spend time orders alto adopting family reports recommendations.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR SPECK

Respondent: MS SPECK

File Number: DGC 4113 of 2010

Judgment of: Judge Burchardt

Hearing date: 10 October 2019

Date of Last Submission: 10 October 2019

Delivered at: Dandenong

Delivered on: 10 October 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Dunlop

Solicitors for the Respondent: Pantana Stanton Lawyers

Counsel for the Independent Children’s Lawyer: Ms Stavrakakis

Solicitors for the Independent Children’s Lawyer: Robert Halliday & Associates

ORDERS

1. The court makes orders for reasons denoted in the oral judgement.

2. That all previous parenting orders be discharged

3. That the Mother and Father have equal shared parental responsibly for X born … 2006 (“X”)

4. That X live with the Mother

5. That X spend time and communicate with the Father on a professionally supervised basis for up to four hours per fortnight for a period of no less than 3 months at such times as can be accommodated by the professional supervisor.

6. That the Mother and Father forthwith make application to a professional supervisor mutually agreed between the parents in writing and failing agreement within 7 days of the date of this Order the Independent Children’s Lawyer nominate a professional supervisor and the Mother and Father forthwith make application to the professional supervisor nominated by the Independent Children’s Lawyer for the purposes of the Father spending supervised time with X.

7. That upon the Father obtaining a favourable report from the professional supervision, at his sole expense, after a period of no less than 3 months of spending supervised time with X, regarding the Father’s time spent with X and providing a copy of same to the Mother and to the Independent Children’s Lawyers, the Father spend time with X as follows:

   (a)On each alternate weekend from the conclusion of school on Friday, or 3:30 pm if a non-school day, until the commencement of school on Monday, or 9:00 am if a non-school day;

   (b)For half of all school term holiday periods and failing agreement for the second half in odd-numbered years from 12:00pm on the middle Saturday until the commencement of school on the first day of the next school term, and for the first half in even-numbered years from the conclusion of school on the last day of the school term until 12:00pm on the middle Saturday;

   (c)For half of the long summer holidays o a week-about basis and failing agreement for the second, fourth and sixth weeks in odd-numbered years, and for the first third and fifth weeks in even-numbered years;

   (d)From 4:00pm Christmas Day to 4:00pm Boxing Day in odd-numbered years;

   (e)From 4:00pm Christmas Eve to 4:00pm Christmas Day in even-numbered years;

   (f)On Father’s Day weekend form the conclusion of school on the Friday immediately preceding Father’s day, or 3:30pm if a non-school day, until the commencement of school on the Monday immediately following Father’s Day, or 9:00am if a non-school day;

   (g)On X’s birthday and on the Father’s birthday for no less than 2 hours and failing agreement from 4:00pm to 6:00 pm

   (h)At such other times as agreed between the Mother and Father in writing.

8. That upon the Father’s time commencing pursuant to paragraph 8 above, the Father’s time be suspended as follows:

   (a)For half of all school term holiday periods and ailing agreement for the first half in odd-numbered years from the conclusion of school on the last day of the school term until 12:00pm on the middle Saturday, and for the second half in even-numbered years from 12:00pm on the middle Saturday until the commencement of school on the first day of the next school term;

   (b)For half of the long summer holidays on a week-about basis and failing agreement for the first, third and fifth weeks in odd-numbered years, and for the second, fourth and sixth weeks in even-numbered years;

   (c)From 4:00pm Christmas Eve to 4:00pm Christmas Day in odd-numbered years;

   (d)From 4:00pm Christmas Day to 4:00pm Boxing Day in even-numbered years;

   (e)On Mother’s Day weekend form the conclusion of school on the Friday immediately preceding Mother’s Day, or 3:30pm of a non-school day, until the commencement of school on the Monday immediately following Mother’s day, or 9:00am if a non-school day;

   (f)On X’s birthday and on the Mother’s birthday for no less than 2 hours and failing agreement from 6:00pm to 8:00 pm;

   (g)At such other times as agreed between the Mother and Father in writing.

9. That the Mother continue to obtain psychological support as long as her therapist considers that will support her.

10. That the Mother be permitted to provide a copy of the Updated Family Report prepared by Ms A dated 18 March 20199 to her treating psychologist and to E School.

11. That the parties each hereby be restrained by injunction from:

    (a)Denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship with in the presence or hearing of the child;

    (b)Discussing family law matters in the presence of hearing of the child

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4113 of 2010

MR SPECK

Applicant

And

MS SPECK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant father seeks an adjournment of this matter to enable him to obtain legal representation.  That application is opposed, both by the mother and by the Independent Children’s Lawyer.  The relevant history of the matter is that as long ago as July 2017 the father filed what is, in effect, the originating application in this particular tranche of litigation between the parties who appear to have been in litigation for quite some years.  He has not actually filed any documentation of any meaningful sort since then. 

2. The matter was listed for trial in March of this year as long ago as June last year.  On the trial date in March, the father attended and sought an adjournment to obtain legal representation and an annotation was made to the orders that were then made to the effect that the father had indicated to the Court he would attend upon a lawyer for the preparation of updating his material.  A family report by Ms A, I think it is, was already available to the parties at that date.

3. The matter returned to court on 8 April 2019, on which occasion the applicant was indeed represented by his solicitor, Mr Connell.  The matter was then adjourned till today with an estimate of two days.  Thus, the applicant had from March, or, at the very latest, from April until now to prepare his material.  That, of course, even the latter date, is some six months ago, or half a year.

4. The Independent Children’s Lawyer submits that the child needs what one might describe as closure in this matter and there is considerable force in that submission.  I note that the father’s position is not that he has actually engaged a lawyer.  Rather, that Mr Connell, for reasons we are obviously not entitled to press, has ceased to act and he proposes to forward, or, indeed, may already have forwarded, his material to Donna Valentine, a well known solicitor in this area. 

5. The matter has progressed no further than that Ms Valentine proposes to look at the material, form a view as to the likely merits or otherwise of the father’s case, and will then advise him.  The Court can certainly not be certain that legal representation will, in fact, be forthcoming and, indeed, a number of solicitors Mr Speck has approached have – and I accept that he has – have simply refused to act for one reason or another.

6. Furthermore, Mr Speck is unemployed.  He would not be able to pay any costs order for the costs thrown away by reason of today.  That imposes a burden on both the other parties.  In all these circumstances, it is plainly wholly inappropriate to adjourn these proceedings and I decline to do so.

Delivered Following Oral Submissions

1. These parties were in litigation between 2010 and 2013.  The current tranche of litigation commenced on 12 July 2017 when the father filed an application and a supporting affidavit.  Relevantly for these purposes, he deposed to separation on 28 October 2010.  He asserted that the mother was a drug addict.  He deposed to the fact that there was no time spent by her with the children.  He referred to the mother’s unstable lifestyle.  He referred to her relationship with Mr B, of whom he made complaint.  And he referred to the mother’s mental health. 

2. To take that last matter first, the mother saw Dr C, who affirmed an affidavit on 29 June 2018.  He did diagnose various forms of mental difficulty on the mother’s part, but came to the view that with proper care, she would be well, and he recommended that she engage with a psychologist.  I note the mother said at the time that she was getting better now that she was seeing the children.  The mother, it is common cause, is properly engaged with a psychologist.  Her mental health difficulties are well under control. 

3. She has undertaken numerous drug screens, and so too has Mr B, all of which have been clear.  Her relationship with Mr B, who has gone on affidavit to this effect, has subsisted since 2015.  They have entered into a three-year lease.  Her circumstances must now be described as reasonably settled.  Effectively, all the matters of which the father made complaint in his originating affidavit have been addressed. 

4. After I declined the adjournment application of the father for reasons which I then gave, the matter proceeded by way of submissions only.  No party sought to cross-examine any of the potential witnesses.  This does give rise to some difficulties where there are conflicts of evidence, but I should go first to the father’s oral submissions. 

5. Mr Speck said that contrary to the assertions made, he was himself the victim of family violence.  The police removed his former partner.  Charges in 2010 were struck out, save for one, which did not give rise to a formal conviction.  X is not smacked at home.  Her report to the school when she had black eyes were what the mother had told her to say. 

6. He was seeking, had the matter been adjourned, to subpoena Child First, where the child has allegedly made various admissions or assertions as to what happens in her mother’s home.  He pointed to the fact that X has been with him since she was three.  The mother was not engaged properly.  The mother was now back in X’s life, and this was good, but she should not live with her mother. 

7. I accept in, as it were, Mr Speck’s favour, that some of the matters asserted as to prior assaults and the like much be approached with considerable caution, given that no one has been cross-examined.  However, the explanation of the child’s injuries as recorded in photographs that constitute ICL1 and the disclosures made by the child are concerning.  The father’s explanation that this happened when the child was playing tiggy before school are, frankly, unbelievable.  It is highly unlikely that a game of that sort could give rise to black eyes such as those in the photographs.

8. Bearing that in mind, I turn to the family report, which is unchallenged.  Ms A has not been required by anybody for cross-examination.  I note that Mr F is now 18 and lives with his girlfriend, but he spends time with X when she is with her mother.  The children lived with the father in 2010, but Mr F left of his own accord in June 2017 and took out an Intervention Order against his father in the same month.  I note that in his initiating application, the father actually sought that Mr F, who was then 16, be returned to him.  It is not stated in terms, but it is implicit in the form of orders that were sought.  That suggests a disturbing lack of insight, given the child’s age and the march of events. 

9. I will read out some paragraphs and paraphrase others, although I should emphasise I have regard to the whole of the report.  Paragraph 22 of the report recorded as follows:

   Mr F reported physical intimidating violence from his father in the form of throwing or smashing items, and that he and X had witnessed such violence between Ms D and Mr Speck repeatedly, whereby Ms D sustained a cut on one occasion.

10. At paragraph 39, Ms A traversed the records involved from Victoria Police, which suggested violence on the father’s part, which I will not read out, but do refer to, and I note that at paragraph 41, the father was highly dismissive of the mother, and indeed dismissive of Mr F’s concerns.

11. At paragraph 62, I note that X has an assessed intellectual score of 70, which is on the borderline of normal.  I note that at paragraph 63, X was revealed to enjoy her time with her mother.  She misses Mr F and her mother, and she was somewhat scared that her parents would know what she told the report writer.

12. At paragraph 64, X was aware that her father would be upset if she moved to live with her mother.  I will read out paragraph’s 65 and 66:

    X reported she would feel “okay” if she lived with her mother and she did not think her father would be upset to know she had said that.  However, X also indicated her father has been violent in her presence, threatening her directly.  There are concerns about how Mr Speck will respond to this information. 

    X described arguments between Ms G and her father, and that she was kept awake until 2.30 am before Ms G left.

13. At paragraph 71, the report continued:

    X was very upset when she spoke about being questioned after the last family report interviews as to what she had said.  She was also upset when she spoke about going to school with black eyes because she was pushed by Mr Speck’s girlfriend.  In contrast to the report provided by E School, X did not appear to have any difficulty stating what made her upset.  X reported the school had photographed her.  X was unsure if his girlfriend had told him about what had happened.

14. Paragraph 74, the report records:

    X is very close with Mr F and he reportedly has taken a protective/parental role with X.  She also impressed as having a strong relationship with her mother and a support person she trusts at school.  X did not report hearing arguments at her mother’s home, and she refers to Mr B affectionately as “Mr B”.

15. In paragraphs 78 to 79, I note that the observation of X with Ms Speck and Mr F was completely unremarkable and relaxed, and I note at paragraph 80, Ms A’s report about the various difficulties X may have in processing information and making decisions.  I will read paragraph 83:

    The issue of family violence will be decided by the Court.  In my opinion Mr Speck has minimised his behaviours.  While to some degree parties tried to present in the best light, Mr Speck was unconvincing about having accepted that he committed family violence let alone having learned any different strategies.  He was evasive at interview giving the impression he was not interested in answering anything in detail. For example about what he had learned from the reported gambling assessment or reported men’s behaviour change group.  Given the recency with which Ms D left and the associated family violence in that relationship, and the concerns that Mr Speck has questioned X about in her interview with the family consultant, there is not much confidence that Mr Speck has turned around the issues in his life. 

16. Paragraph 85 of the report recorded

    Ms Speck impressed as having undertaken Orders and reportedly to have complied with them.  She demonstrated insight about her past coping strategies and about the impacts of living with alleged creeping, escalating family violence.  While she and Mr B reportedly used illicit substances together in the past, they reported that they are in recovery and that their relationship is much improved without any family violence.  If the Court is satisfied about that recovery, it would benefit X to live with her mother. 

17. Paragraph 86 of the report continued. 

    To date there is no evidence that Ms Speck has overheld either X or Mr F and that she does not comply with orders.  Mr Speck alleged that Ms Speck coached X but there is little support for that insofar as X arrived and left with him from the family report interviews.  X has been described as easily led and potentially she may have been by her mother, but I would add she is likely to be easily intimidated and in my opinion that is the more likely scenario.  X did not spontaneously offer information about being intimidated but she was able to describe it after being asked directly about whether she was questioned following the previous family report interview. 

18. At paragraphs 88 – 89, the report noted

    Mr F remains steadfast in his reports that he left his father’s home because he was fearful of his father, and that he has remained concerned about X living with their father.  Mr F is a mature young man, and he impressed as genuine in his reports of events and his concerns.  He presented as a convincing reporter because he continued to express a care for his father and a wish for their relationship to be different.  However, he stated that Mr Speck has refused all offers to speak via phone.  Mr F is also not living with his mother.  Rather, he lives with his girlfriend’s family, and so is unlikely to be unduly influenced by his mother.

    In relation to X and the reliability of her reporting, while X has a borderline full IQ and appears to struggle at school with emotional expression, social relationships, hygiene issues, irritability after lunchtime and learning generally, in my opinion, all of those could be related to the lack of support Mr F described in her father’s home and the intimidation reported by Mr Speck.  X impressed as genuinely upset and her emotional expression was congruent with the information she provided.  X’s wishes in relation to living with her mother are consistent with her age and needs.  In my opinion, they should carry significant weight as to where she lives. 

19. It appears, of course, no one has sought to challenge Ms A’s report. 

20. This brings us to the statutory pathway, and the first task of the Court, of course, is to address the presumption as to equal shared parental responsibility.  The father’s submissions are silent on this point.  The Independent Children’s Lawyer supports joint parental responsibility, despite the obvious and continuing difficulties in communication between the parents.  The mother seeks an order for equal shared parental responsibility, but in the effect that she have the final decision in the event of disputation. 

21. Given X's IQ and associated difficulties, in my opinion, the Independent Children’s Lawyer’s position is the preferred one.  Joint parental responsibility is vital, despite the presumption being prima facie rebutted by family violence in the past.  In the event that the final choice is given to the mother, in my opinion, given the relationship between the parents, she will simply excise the father from the decision-making process, and X does, for all the difficulties her parents have with one another, need both of them insofar as there are to be long-term decisions, and major decisions about her future. 

22. This brings us to the primary considerations in section 60CC(2) of the Act.  Everybody supports the proposition that X should have a meaningful relationship with each of her parents.  Both of them seek it even though there are other matters and significant matters in dispute between them.  There is, plainly, a need to protect X.  She was, plainly, injured by the father’s former partner, and he denies this, which I find problematic.  Nonetheless, as I say, everyone agrees it is important for X to have a meaningful relationship with each parent and, in a sense, despite all the difficulties and the past problems and the violence that has undoubtedly occurred, everyone seeks that X spend significant and substantial time with each of her parents, and that brings us, of course, to the critical issue as to who X should primarily live with.  One could say a lot about the other considerations in section 60CC(3), but subject to one matter which I will come to in a moment, really, this is the critical issue.

1. Ms A says that X should live with her mother and spend supervised time with the father.  The mother and the Independent Children’s Lawyer do not seek supervision.  X wants to live with her mother.  She misses Mr F with whom she has a good relationship.  I note that Mr F is apparently in year 12 and that may make his time with her a little bit more problematic, but she plainly wants to see him, and that is relevant.  She appears to have a good relationship with Mr B, whom she referred to affectionately as Mr B.  Ms A is, in my view, correct.  X’s views should be given very significant weight. 

2. The mother is over her problems in the sense that they are, at least, sufficiently under control.  I accept the observations of Ms A about the father’s lack of insight, not least, for example, insofar as he sought the return of Mr F to live with him when Mr F was already 16.  I am going to make orders as sought by the Independent Children’s Lawyer with one proviso, and I should return to the other matter in section 60CC(3) which is relevant, namely, subsection (L).  It is plainly, as Ms Stavrakakis submits, in X’s best interest that this matter come to a final conclusion, and I am going to do that. 

3. The only order I am not going to make that is sought by the Independent Children’s Lawyer, and it as, indeed, recommend by Ms A, was that the father undertake a 40-week Heavy Metal Course.  In the light of his discussion with Ms A about the benefits that he had already received from doing other courses, it seems to me an exercise in futility.  It is likely to give rise to further difficulties as to compliance.  It would benefit the father to do this course, and I would make that point as strongly as I can, but if he chooses not to,  then I am not going to expose him to the contempt compulsion of the Court’s orders.  I would be indebted if they could be engrossed by the Independent Children’s Lawyer and forwarded to the Court. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 November 2019