Valentin and Eccles (No.2)

[2019] FCCA 2855

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALENTIN & ECCLES (No.2) [2019] FCCA 2855

Catchwords:
FAMILY LAW – Interim parenting orders – whether children should spend time with their father in accordance with their wishes – applicable principles – whether spend time arrangements present an unacceptable risk to the children – best interests of the children – applicant father restrained from consuming alcohol during spend time with children – whether final parenting orders should be varied – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.5A, 60, 60CC, 65D, 70Q

Cases cited:

Bondelmonte v Bondelmonte [2017] HCA 8
Cowling v Cowling (1998) 22 Fam LR 776
Goode & Goode (2006) 36 Fam LR 422
Snipper & James [2018] FamCA 6
Rice & Asplund (1979) FLC 90-725

Applicant: MS VALENTINE

Respondent: MR ECCLES

File Number: MLC 3881 of 2011

Judgment of: Judge A Kelly

Hearing date: 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Melbourne

Delivered on: 23 October 2019

REPRESENTATION

Counsel for the Applicant: Mr N. Gardiner

Solicitors for the Applicant: Tragear & Harris Lawyers

Counsel for the Respondent: Mr T. Moisidis

Solicitors for the Respondent:	Belleli King & Associates
Counsel for the Independent Children’s Lawyer:	Ms L. Johnson

Solicitors for the Independent Children’s Lawyer: Bentleigh Family Lawyers

ORDERS

1. The respondent mother’s application for interim relief be dismissed.

2. Until the further hearing and determination of the proceeding or further order, paragraph (5) of the final parenting order made on 15 May 2015 be suspended and in lieu thereof the children, [X], born … 2005 and [Y], born … 2008 (the Children), spend time and communicate with the applicant father each alternate weekend from after school Friday to before school Monday with such spend-time to commence with effect from Friday, 27 September 2019, and each alternate weekend thereafter.

3. The parties be restrained whether by themselves their servant their agents, or howsoever otherwise from discussing these proceedings in the presence of the Children.

4. By consent, the applicant father be restrained from consuming alcohol at any stage during the period that the Children spend time with him on alternate weekends pursuant to paragraph (2) of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3881 of 2011

MS VALENTINE

Applicant

And

MR ECCLES

Respondent

Ex tempore REASONS FOR JUDGMENT
(Revised from transcript)

1. These reasons for judgment explain my conclusions as to the orders which are appropriate to be made on an interim defended basis pending the hearing and determination of an application for further parenting orders in a trial which is fixed to commence in November 2019.  Contextually, as counsel for the Independent Children's Lawyer (ICL) helpfully observed, it is necessary to bear in mind that the orders made on an interim basis will, in fact, unless varied, continue until delivery of judgment following the trial (which itself may be many months after that hearing).

2. The genesis of the present application may be traced to some parenting orders which were made in April 2011.  Those orders were made by consent.  They relate to the two children of the relationship, [X] born … 2005, and [Y], born … 2008 (the Children).  I will not rehearse the entirety of the proceeding; however, I note that an ICL was appointed to represent the Children’s interests by order made on 29 October 2014, and that the parties’ participated in a trial which took place on 23 April 2015. 

3. In substance, at the trial before Judge Bender, the principal issue concerned whether the applicant mother might relocate to New Zealand.  The mother was not successful in that application. 

4. Notably, an issue which is not the subject of contest before me is that the parties should have equal shared parental responsibility for the children.  Relevantly to the present application – is paragraph 5(a) of the final order, which reads:

   [X] and [Y] spend time and communicate with the father as follows:

   (a) Each alternate weekend from after school Friday to before school Monday since those orders were made. 

5. A great number of further orders were made respecting the Children’s spend time with their father including midweek, school holidays, special days, Christmas and the like.  The Order provided for changeover, and that also was not said to be a matter of present difficulty.

6. While the orders have been operative since 15 May 2015, a number of difficulties were encountered.  It is not necessary for the purposes of this application to rehearse the whole of the parties’ history.  Suffice to say that on 25 October 2018 the respondent father filed an initiating application seeking to vary the orders so as to alter the amount of spend time which the Children would spend with him.  Nor is it necessary for present purposes to embark upon a consideration of the principles in Rice & Asplund; however, it should not be overlooked that final parenting orders have been made and remain operative and enforceable unless varied by further order.  No such further orders have been made at present so as to vary those final orders.

7. A number of interim orders have been made in the proceeding, including that parties would be permitted to inspect any report of the Department of Health and Human Services (DHHS) produced in response to a notice of risk that was filed in the proceeding on 17 December 2018.  Liberty was granted for the parties to apply on short notice.  On 21 February 2019, the parties agreed in consent orders that they and the Children would attend upon a psychologist as agreed for the purpose of the preparation of a family report. 

8. In an effort to facilitate the resolution of the matter, arrangements were made for a family consultant to furnish a report pursuant to section 11F of the Family Law Act 1975 (Cth) (the Act).  I will provide a summary of salient features of that report. 

9. While it will be necessary to deal with the report of the family report writer, Dr A, in particular detail at trial, it is necessary to recognise at this point that it became the catalyst for a number of events.  Firstly, it appeared that the father decided not to press his application to change the parenting arrangements.  Secondly, it appears to have fortified the mother in the view that the Children should only spend time and communicate with the father in accordance with their wishes.  That this is so, is confirmed by the mother’s amended response filed on 14 August 2019. 

10. On 19 August 2019, I acceded to a joint application by counsel for the father and mother, Mr Gardiner and Mr Moisidis respectively, that there should be an interim hearing in respect to the Children’s spent time arrangements pending trial in November 2019.  From the father’s perspective this had become important because there had been a unilateral cessation of spend time arrangements.  From the mother’s perspective it was because she pressed for an alteration to the 2015 orders on the substantive basis that the Children should henceforth only spend time with the father in accordance with their wishes.

11. Having regard to the somewhat pessimistic developments in the case, an initiative was taken to appoint a further ICL.  The court was particularly assisted by the submissions of Mr Johnson of counsel and the careful consideration which had been given to how the best interests of the Children might be discharged or observed on an interim basis until judgment after trial.  Having regard to the parties’ determination to seek interim relief a series of directions were made to facilitate that and interim hearing could be conducted.

12. Notations to the order made on 19 August 2019 included that:

    B.While the respondent other contends that she is adhering to the spend time arrangements in accordance with the recommendations of Dr A, the applicant father makes the claim that he does not press for relief pending determination of the interim application

    C.While the applicant father presently has no interim application on foot, he seeks an order for dismissal of paragraph (1) of the interim orders made by amending response filed on 14 August 2019 (and the parties are content to proceed on that basis).

    D. Both parties are asked to use their best endeavours to consider how therapeutic counselling may be of assistance to the Children. 

13. Despite the Practice Note which regulates the conduct of interim applications in this court, the parties’ submissions which, although complying strictly with the direction that those submissions not exceed 12 pages had, in the mother’s case, been adjusted by being filed in a manner which was single spaced and in a relatively small font.  In addition (albeit that the parties hope to proceed on an interim basis), their outlines identified the whole of the material upon which they relied.  In the course of preparing for this interim hearing and having regard to the other business of the court which was listed this day, it became apparent on the evening before the hearing that the following documents were being relied upon:

    (1)initiating application filed by the father on 25 October 2018; 

    (2)affidavit in support of the father filed on 25 October 2018; 

    (3)response filed by the mother on 17 December 2018;

    (4)affidavit of the mother filed on 17 December 2018;

    (5)notice of risk of the mother filed on 17 December 2018;

    (6)materials produced in response to Subpoena – B School dated 9 January 2019;

    (7)materials produced in response to Subpoena to Medical Centre C dated 9 January 2019;

    (8)materials produced in response to Subpoena to Dr D dated 9 January 2019;

    (9)materials produced in response to Subpoena to Victoria Police dated 9 January 2019;

    (10)section 11F Child Inclusive Conference memorandum dated 4 January 2019;

    (11)amended response by the mother filed on 20 February 2019;

    (12)further affidavit of the mother filed on 19 February 2019;

    (13)affidavit of the father filed on 19 March 2019;

    (14)family report of Dr A dated 9 August 2019;

    (15)amended response by the mother filed on 14 August 2019;

    (16)further affidavit of the mother filed 14 August 2019;

    (17)affidavit of Dr A filed 16 August 2019;

    (18)affidavit of the father filed 30 August 2019;

    (19)affidavit of Ms E filed on 3 September 2019;

    (20)affidavit of Ms F filed on 2 September 2019;

    (21)affidavit of Ms G filed on 3 September 2019; and

    (22)earlier family report of Mr T filed on 27 March 2019.

14. In addition, the parties relied upon the procedural history of the matter.

15. Suffice to say that the manner in which this application was brought forward as a supposedly interim defended hearing was the antithesis of what had been anticipated.  It is wholly unacceptable for parties to pursue applications on this basis.  Principles of case management are very much in the forefront of my mind and the costs of and incidental to this proceeding are a matter which may warrant close attention following trial. 

16. The applicable legal principles are not seriously in contest. Part VII of the Act concerns the subject, children. It is arranged in 16 Divisions comprising sections 60-70Q.

17. Relevantly, s 65D of the Act provides that the court may make such parenting order as it thinks proper. The scope and operation of this 65D of the Act was considered by the High Court in Bondelmonte v Bondelmonte[1]. The High Court accepted that the making of a parenting order under s 65D involves the exercise of a judicial discretion, which is made by reference to the paramount consideration that regard must be had to the best interests of the children. The Court recognised that regard should be had to both the primary considerations in s 60CC(2) and to the additional considerations in s 60CC(3) but that necessarily, the making of a parenting order involved the formation of value judgments in respect of which there may well be room for reasonable differences of opinion, as also there may be, in the overall assessment of what is in the best interests of the children.

    [1] Bondelmonte v Bondelmonte, [2017] HCA 8, [8].

18. Having regard to the nature of the submissions made before me, it is unnecessary to reiterate the text of s 60CC in its entirety. It is important to recognise that, before those considerations are engaged, s 60B of the Act identifies both the objects of Part VII and the principles which underlie it. Relevantly, principles which underlie the operation of Part VII include that children have the right to know and be cared for by both of their parents and that they have the right to spend time on a regular basis with and communicate on a regular basis with, both their parents and others.  Further, a principle underling the operation of Part VII is that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.  

19. It must be recognised that the principles expressed in s 60B are qualified as being subject to an exception; namely,

    Except where it would be contrary to the child’s best interests.

20. The parties’ written submissions helpfully addressed these matters.  I have outlined above the whole of the material which was put forward in relation to the matter.  It is not necessary for the purposes of the determination of this interim application that I should summarise the whole of that material.  Indeed, it would be inimical to the early determination of the application that I should be required to do so.  Suffice to say, I have spent a considerable amount of time out of court hours examining that material.  So much was made plain by the initial observations which I made at 10:00am when the matter was first called on and then stood down.

21. Mr Moisidis of counsel helpfully identified the principles in Goode & Goode[2], which apply to the determination of an interim application for parenting orders.  Necessarily, the Court recognised that as interim proceedings are interlocutory in nature, the statement made earlier by the Full Court in Cowling v Cowling[3] remained apposite and accepted as the procedure to be adopted in the making of interim parenting orders.  In substance, those authorities authorise the Court to conduct an interim parenting application as an abridged process such that the scope of the Court’s inquiry is, of necessity, to be significantly curtailed from that which will obtain at trial.  This notwithstanding, the Full Court recognised that the abridged process remained constrained by the requirement that the Court must have regard to the best interests of the child as the paramount consideration in deciding what interim orders should be made.[4]  The Full Court held:

    . . .  a legislative intent [is] evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable.[5]

    [2]             Goode & Goode [2006] 36 Fam LR 422.

    [3]             Cowling v Cowling [1998] 22 Fam LR 776.

    [4]             Goode & Goode [2006] 36 Fam LR 422, [69].

    [5]             Cowling v Cowling [1998] 22 Fam LR 776.

22. Consistently with the principles stated in Goode’s case,[6] I have identified above the competing proposals of the parties.  In short the mother presses on an interim basis that the Children should only spend time with their father in accordance with their wishes.  Contrastingly the father, having regard to the contents of the report of Dr A and the views expressed by counsel for the ICL, has accepted modification of the existing final parenting orders in the following respects; first, that he will abstain from consuming alcohol whilst the Children are in his care and secondly that there be mutual injunctions for each party not to discuss the proceedings in the presence of Children.

    [6]             Goode & Goode [2006] 36 FamLR 422, [82].

23. While the first of those concessions was made, based upon or as being essentially, in accordance with the recommendations of the s 11F report, the mutual injunction was a matter which was raised by the court on the basis that, if injunctions were to be sought, it remains preferable, that they operate bilaterally. Thus the issue in dispute came down the question of whether the Children should have any spend time with their father other than in accordance with their wishes.

24. The father’s proposal was that, pending trial, he would not press for a complete resumption of all the spend time arrangements outlined in paragraph (5) of the final orders, including as to pending school holidays, but that there would only be a resumption of spend time by the Children with him on alternate weekends as described in paragraph (5)(a) of that Order.  Contrary to the submission of Mr Moisidis of counsel, in my view, Goode’s case holds that the legislative pathway to be followed in an interim hearing permits that the abridged process requires consideration of the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).[7] 

    [7]             Goode & Goode [2006] 36 FamLR 422, [82].

25. I have uppermost in my mind that for the purposes of an interim hearing, Goode’s case confirmed that the abridged conduct of the interim application remains qualified by the need to protect children from physical or psychological harm or from being subjected to or exposed to abuse or family violence.  For the avoidance of doubt, I accept the submission of Mr Moisidis (which was accepted by counsel for the ICL and implicitly by counsel for the father), that consideration of interim parenting-orders requires the exercise of caution. 

26. The report of Dr A deals extensively with the author’s consideration of the matter.  By way of overview it may be noticed, that Dr As' consultation with the father and mother occurred on 8 and 16 May 2019 respectively, and then with the parents and their Children on 24 May 2019.  Having regard to the matters being considered by Dr A, he, commendably, took the initiative of communicating again with the Children on 19 June 2019 and also with the father.  I have examined Dr A's report in detail.

27. As Mr Moisidis of counsel quite properly accepted, the determination of an interim (or any) parenting-application is not a trial by expert but involves consideration of the whole of the evidence and submissions that are brought forward.  Structurally the report of Dr A detailed his individual consultations with the father, the mother, the Children, the father and Children, then the father and the child, [Y]. 

28. I cannot ignore that the Children have polarised views of their father which were manifest in the course of their consultation with Dr A.  Nor do I ignore that the elder child, [X], was so upset by his discussions and disclosures with Dr A in the presence of his father that he kicked the father forcefully before leaving.  The Children were observed to be sobbing.  Extensive allegations were recorded of the father’s alcohol consumption, allegations which he contests.  A persistent theme in the report of Dr A was the father’s apparent inability, “even slightly”, to consider how he might have contributed to the depth of the Children’s expressed views and feelings toward him.  Likewise, the report recounts the mother’s apparent apprehension of being anywhere near the father.  Contrastingly, other evidence indicates that, after one of the Children had been hospitalised, both the father, the mother and each of the Children returned in the same car from that hospital attendance. 

1. An available view, which may be explored further at trial (and which was explored in the course of the interim hearing), was that the extent of the Children’s expressed upset may be, at least in part, their complete frustration at being caught in the centre of the parties unyielding hostility toward one another. 

2. Mr Moisidis also identified extensive features of Dr A's written opinion upon which he relied in support of the conclusion that the Children should not spend time with their father other than in accordance with their expressed wishes.  Contrastingly, while Dr A observed that the Children were distressed and enraged when speaking of their father, he opined that they both appeared relatively robust, the younger daughter being more so than her elder brother, and that they were easily engaged and comfortable in speaking about matters relevant to their situation.  I agree in the opinion expressed by Dr A, that in those circumstances the views of those Children were both credible and should not be dismissed as either being concocted or otherwise constructed.  Notably, Dr A did not discount that the Children’s views may be influenced by their mother, their loyalty to her in combination with the mother’s anxiety about the father and their present rejection of him. 

3. An important theme in Dr A's report concerned the father’s lack of insight or capacity for self-reflection.  In particular, Dr A opined that:

   At the same time, if the father had acknowledged, even minimally, the strength and ownership of the children’s views, and had also acknowledged even limited foundations to those complaints, a more optimistic, if guarded, prognosis would be possible.  A more positive view might emerge on the foundation that [the father] had sufficient insight to drive change in his observed parenting skills: [21].

4. Overall, Dr A was unprepared to support the Children resuming their spend time with the father in circumstances described above. 

5. However, Dr A was clear, in his conclusion that:

   I’m aware that the father will be (and deserves to be) very distressed by these recommendations, because of his genuine devotion to the children and desire for a close relationship with them.  At this point, however, to disregard the depth of the children’s antagonism towards the father, and the reported history, depth, intensity and clarity of their wishes at their current ages, would be likely to place them at unacceptable risk of harm: [30].

6. Contrastingly, Dr A opined [at 28] that if and when the father could satisfy the court of a shift in the concerns which had been expressed earlier (i.e.  of the need to acknowledge and address the Children’s views and demonstrate a toleration of those views as they are genuinely held views at this stage), it would be possible to consider creating:

   Remediation in the children’s views and the father’s ability, and the prognosis for their relationship, and the desirability of conduct, contact would be substantially improved: [29].

7. As Mr Moisidis sought to emphasise, a concluding opinion stated by Dr A was that the Children would be placed at an unacceptable risk of harm if spend time were to be resumed with the father.  In the way that I read Dr A's concluding opinion, however, the likelihood which he postulated of an unacceptable risk of harm was itself predicated on the father disregarding the depth of the Children’s antagonism and the other matters referred to in paragraph [30] of his report.

8. While Mr Moisidis quite properly drew my attention to certain passages in Goode & Goode, I agree in the submission of counsel for the ICL that there has not been an event of such significance as to support a conclusion that there should be an order for “no time” on an interim basis.  Ms G properly put before me that the evidence did not support a conclusion that there had been an event of such significance as to constrain the Children in their spend time with the father on an interim basis.  Accordingly, I regard the principle referred to in Goode[8] as having been considered and applied to the present case.  I do not accept that convincing proof has been adduced in this case that the Children’s welfare would be “really endangered” by spending time with their father.[9] 

   [8]             Goode & Goode [2006] FamCA 1346, [67].

   [9]             (citing) Cowling v Cowling [1998] 22 Fam LR 776, [22].

9. Likewise, I consider the circumstances of Snipper & James[10] upon which reliance was placed as distinguishable from the present case.  In particular, in contrast with Snipper the present application was not brought about because the ICL (as distinct from the parties) was motivated to bring an application by reason of the recommendations of a single expert, nor was it a case in which orders have been made suspending the Children’s spend time with the father.  Nor, despite one troubling aspect of Dr A's report, am I satisfied that the present case supports a conclusion that there has been a:

   [10]           Snipper & James [2018] FamCA 6.

   Pattern of “significant” emotional abuse of the children.

   However unhappily some of the Children’s time may have been with their father, I am not prepared to form a conclusion of the kind which was reached in Snipper to that effect.  Nor, for those reasons do I accept, including for the reasons below, that the untested views of Dr A are of such significance that the court should err on the side of caution by implementing his recommendation pending the final hearing.[11]

   [11]           Snipper & James [2018] FamCA 6 at 11, 12, 19 and 38.

10. A factor of particular significance for me in the present case as was emphasised in the course of the hearing is the steps which the father has taken in responding to the observations in Dr A's report.  In particular the father has deposed to having taken up the suggestion that he should undertake counselling and that he deposes to having done so.  The submission by Mr Moisidis of counsel that the father’s affidavit was lacking in detail did not persuade me that the father’s untested evidence should not, at least at this stage, be taken at its word. 

11. To the contrary, having regard to the gravity of the issues which were raised by Dr A and his express acknowledgment that the father would find the contents of his report to be so distressing, I prefer the conclusion that the father has had, in effect, a serious wakeup call and recognised the need to take steps whereby he might, to adapt the language of Dr A, seek to remediate his relations with his Children.  In particular, the father deposed:

    I accept that it is obvious, from the report, that notwithstanding the reasons why the children are saying what they are saying, there is a significant problem with my relationship with them, and having acknowledged this I am now prepared to do whatever is necessary to amend my relationship with them.

    Accordingly, I have engaged in counselling with Family Relationship Services H and hope that should it be necessary to involve the children and/or Ms Valentine, she will also help.

12. In addition, the father exhibited a certificate of completion of a course “Engaging Adolescents”, and deposed that he was also making inquiries about what other courses might be of assistance to the present difficulties.  He reiterated that he was “prepared to do whatever is necessary to ensure that I have a meaningful relationship with my children”.  It is to be hoped that the mother with reinforce these efforts.

13. For the reasons set out above I do not accept the mother’s application that, on an interim basis, the Children should only spend time with their father in accordance with their wishes.  I regard the decision to unilaterally terminate the orders operative since 2015 as regrettable.  As observed in the course of the hearing, I consider it important (as is frequently said) to see how things are working.  It is preferable that the Children should resume their relationship with their father on alternate weekends and the parties will, with the assistance of the ICL, be able to adduce and explore the evidence as to how the Children are coping in their dealings with their spend time with their father. 

14. Insofar as significant weight was sought to be attached to the father’s consumption of alcohol, I observe that no less than three affidavits were filed by persons in support of the father’s case that he does not drink to excess. I take into account that the deponents to those affidavits were prepared to go on oath in support of that case and are therefore willing to be challenged on their sworn evidence if that is what is to occur.

15. I further do not ignore the submission made by Ms G in reply that Dr A is not the only expert in the case and that the recommendations of the s 11F family consultant had only suggested that time might be “cut back”.  I accept Ms G’s submission that the ICL resisted a conclusion the Children should only spend time with their father in accordance with their wishes.  I further accept her submission that it was preferable to try to restore the relationship and get it on a better footing before trial and to resume the status quo, so far as that was possible, at least until the hearing.

16. In all the circumstances, the application for interim relief that the Children should spend time with their father only in accordance with their wishes is dismissed. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kelly.

Associate: 

Date: 23 October 2019