WALTON & RHODES

[2017] FCCA 1779

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALTON & RHODES [2017] FCCA 1779

Catchwords:
FAMILY LAW – Parenting dispute – intractable contest with siblings isolated and separated between parents – large involvement by Father’s parents who actively subvert parenting arrangements – complete legal, procedural and logistical impasse in relation to appropriate interim and final parenting options – written submissions provided by the parties and the independent children’s lawyer – procedural course dealt with on the basis of written submissions – warning to Father of possible change in residence of the child currently living with him if his non-compliance continues.

Legislation:

Family Law Act 1975, ss.11F, 60CC(2)(b) & (2A), 60CC(3)(b), (c), (ca), (f) & (i)

Applicant: MR WALTON

Respondent: MS RHODES

File Number: CAC 1665 of 2011

Judgment of: Judge Neville

Hearing date: 13 April 2017

Date of Last Submission: 26 April 2017

Delivered at: Canberra

Delivered on: 11 August 2017

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondent: Self represented

Solicitors for the Independent Children's Lawyer: Dillon-Smith Lawyers

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for the children, [Y] (born:  2003) and [X] (born: 2005) (“the children”).

2. The child [X] will live with the Mother.

3. The child [Y] will live with the Father.

4. The Independent Children’s Lawyer will write to the parties to organise a time for her to meet with both children within 21 days of the date of these Orders, that is by close of business on 24 August 2017.

5. The parties will facilitate this meeting between the children and the Independent Children’s Lawyer and will encourage the children to speak with her.

6. The Mother shall spend time with [Y] as follows:

   (a)For a period of 2 months, every second Saturday afternoon on the weekend when [X] is also living with the Mother, from 1:00pm to 5:00pm; and,

   (i)This time is to be spent at a place away from the Mother’s residence.

   (b)After the period of 2 months has ended as per Order 6(a), for a further 2 month period each alternate Friday after school until before school on Monday;

   (c)Thereafter, each alternate weekend from after school on Friday until before school on Monday and from after school each Wednesday to before school on Thursday; and,

   (i)Each Tuesday night by telephone with the Mother to place the call.

7. The Father is to encourage and facilitate [Y]’s time speaking with her Mother on the telephone.

8. The Father shall spend time with [X] as per the current arrangements of each alternate week.

9. In relation to Orders 6 and 7, the Father will do all things necessary to encourage and facilitate [Y]’s relationship with her Mother.

10. The Father will do all things necessary to transport [Y] to the agreed changeover point for the purpose of spending time with the Mother.

11. The Independent Children’s Lawyer will explain to [Y] that these Orders have been agreed to by the parents and encourage her to spend time with her Mother and sister.

12. For the purpose of her time with [Y] as per Order 6, the Mother will not consume any alcohol for 24 hours prior to and during her spending time with [Y].

Restraints on the parties’ exercise of parental responsibility

1. The parties be restrained from:

   (a)Changing the child/ren’s school without the consent of the other parent; and

   (b)Relocating either child’s permanent residence from the (omitted) region without the prior written consent of the other parent.

2. The parents are required to keep each other informed via SMS (text) message in relation to the child/ren’s general health and wellbeing, medical appointments and treatment.

3. The parties will notify the other parent of any medical emergency, serious injuries or hospitalisation suffered by either child as soon as practicable and by any means necessary.

4. Each parent will keep the other informed of their current residential address, mobile and landline telephone numbers, and any available e-mail addresses, and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.

5. The parties will not make critical or derogatory remarks about the other parent, or their family, in the presence of or within the hearing of the children and the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family, in the presence of or within the hearing of either child.

6. The Father will not allow either of the children to be exposed to any negative comments made by the children’s Paternal Grandparents about their Mother and will remove the children from the situation if that occurs.

7. Neither parent will allow the children to read or have access to the documents filed in these proceedings.

8. Pursuant to section 62G(2) of the Family Law Act1975 (‘the Act’) the Applicant Father, Respondent Mother, the Paternal Grandparents and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act and in particular the mental health of all parties.

9. The matter be adjourned for further directions to 14 November 2017 at 2:00pm in CANBERRA, with all parties granted leave to appear by telephone on that occasion.

THE COURT NOTES THAT:

A.In the event the Father does not comply with these Orders, the Court will consider changing [Y]’s residence so that she lives with the Mother;

B.Should the Paternal Grandparents continue to frustrate any parenting Orders made in this matter, the Court may make Orders preventing the Paternal Grandparents from attending any changeovers;

C.All parties and practitioners have leave to attend by telephone on the next occasion, and are advised that the Teleconference on the next occasion will be conducted by the parties dialling the AAPT Teleconferencing Service;

D.The parties practitioners are to dial in for the purposes of their telephone appearance by adhering to the following procedure:

(a)Dial the AAPT Teleconferencing Service on (omitted);

(b)Enter the Guest Passcode (omitted), followed by the # key;

(c)Please stay on the line until the Court calls the matter.

E.To facilitate the Teleconference, the parties and practitioners are requested to dial the Teleconferencing phone number no later than 5 minutes prior to the scheduled time for the next court event to commence;

F.Should a party or practitioner not be on the telephone line when the matter is called, the Teleconference may be locked to further participants and the matter may proceed in their absence;

G.Should a practitioner or party who has been granted telephone leave choose to appear in person, they are to contact Chambers no later than three (3) business days prior to the next Court event advising of their intention to appear in person;

H.Should a party fail to comply with Notation G, they may be required to pay the cost of the AAPT Teleconference.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1665 of 2011

MR WALTON

Applicant

And

MS RHODES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This intractable parenting matter involves two sisters, [Y], who is now 14 years old, and her younger sister, [X], who is now 12 years old.  Their parents are self-represented litigants.

2. There is a long history to the matter, which may very briefly be stated as follows.

3. Original proceedings were commenced in November 2011.  Final Orders, by consent, were made the following month in the Family Court of Australia.

4. A Contravention Application was filed by the Father in May 2012, with Orders made on 18^th June 2012, 5^th and 24^th September 2012, 18^th October 2012, and following an Application by the Father, Final Orders [again] made on 5^th July 2013.

5. On 5^th April 2016, the Father filed another Initiating Application.  The Mother filed a Response on 22^nd August 2016.

6. On 8^th September 2016, pursuant to s.11F of the Family Law Act1975 (“the Act”), the Court made Orders for the parties and the children to attend upon a Family Consultant for the purpose of preparing a Memorandum.  Nobody attended that appointment scheduled for 15^th December 2016.

7. On 7^th February 2017, further interim Orders were made by consent.

8. The Father filed a further affidavit on 27^th March 2017.

9. On 13^th April 2017, the following notations were made that recorded the procedural and other lamentable state of affairs:

   A. The Independent Children’s Lawyer has indicated to the Court that:

   a)   The Interim Consent Orders made by the Court on 7 February 2017 were not complied with by either party almost immediately;

   b)   She has interviewed both children recently, and has had productive conversations with both children;

   c)    [Y] has indicated that she would be willing to spend time with her Mother and have a relationship with her;

   d)   [X] has indicated that she was having difficulties going to her Father, and has been extremely distressed about being asked to take a position;

   e)    On her view, the Paternal Grandfather has become extremely involved in the proceedings to the disruption of [Y]’s relationship with her Mother;

   f)            It is likely that the children are becoming alienated from their non-resident parent.

   B. The Court has indicated that there are a number of options to progress the matter, including:

   a)   The matter being set down for Final Hearing; or,

   b)   Final Orders being made for the children to spend time with each parent accordingly to their wishes;

   C. The Father has indicated that he wishes Final Orders to be made in the matter;

   D. The Mother has indicated that she wishes the Interim Consent Orders made on 7 February 2017 to be made as Final Orders.

10. On that same date, the Court made Orders that it would notify the parties of the procedural course to be taken.

11. My Chambers then wrote to the parties and the Independent Children’s Lawyer (“the ICL”) on 19^th April 2017 in the following terms:

    When the matter was last before the Court on 13th April 2017, a number of options were discussed regarding the future conduct of the matter.  The purpose of this note is to set out those options and seek a response from each of the parties within 14 days, and for the ICL to respond 7 days after the parties have replied:

    1.         The Court could make final Orders whereby the children would live with each parent according to their respective wishes;

    2.         The Court could set the matter down for final hearing (which would not be until perhaps the middle of 2018);

    3.         A further option, not canvassed in detail at the recent mention, would be for the Court to make the current interim Orders into Final Orders.

    In whatever Orders are made, the Court is strongly minded to make further and quite specific restraining Orders in relation to the paternal Grandparents, e.g. that they not attend any changeover.  There would also be confirmation of non-discussion Orders and non-denigration Orders.  And if there was to be any breach, for example, of the Grandparents attending any handover, there would be an immediate change in residence of that child.

    I note that the Court does not have a current email address for the Father.  In these circumstances, would the ICL kindly arrange for a copy of this email to be made available to him.

12. On 24^th April 2017 the Father filed written submissions.

13. On 26^th April 2017 the ICL provided written submissions.  To date, the Mother has not filed any submissions.  The submissions, as filed, are set out later in these reasons.

14. On 24^th July 2017, the paternal Grandfather faxed material to the Registry of the Court.  Because he has done this a number of times, he was warned by the Registry to desist in taking such action.  He was advised that he could only file material if he was a party to the proceedings, which he has not sought to do.

15. Neither parent has filed an updated Minute of Orders Sought, post the Orders made by consent on 7^th February 2017.  In the Father’s Initiating Application, filed 5^th April 2016 (strangely, the Court stamp refers to 2015 but this is temporally impossible and inconsistent with other documents filed before that date, and subsequently), summarily stated, he sought Orders for “a review of the care arrangements for [X]” and that he not be treated as a “second class Father.”  He sought that [Y] “have a free choice to make her own decision regarding schooling” and “uninterrupted education” and for [Y] to have a passport before her 18^th birthday.

16. In the Mother’s Response, filed 22^nd August 2016, she sought Final Orders that the Father would “follow the Court Orders which were put in place for our children on 7^th December 2011”, and on an interim basis, that the Father would allow her to spend time with the children in accordance with earlier Orders, that the paternal Grandfather cease his intimidation of her, and that the Father provide the Mother with a contact telephone number which was not that of the paternal Grandfather.

17. To state the obvious: in general terms, the substantive Orders sought by both parties are unenforceable and inapposite both as to form and as to content.  This is in circumstances where the Court has discussed with both parties, over many Court-events, and over a very long time, various options and the course or form required in seeking Orders and the like.  That said, the Court cannot give advice (especially ongoing advice), other than in general terms, to parties where both are self- represented, and at the same time make proper determinations that are in the best interests of the children.  The Court has suggested to them both that they obtain legal advice or more generally to speak with the ICL.  The Court could, of course, make very basic Orders such as the Father providing the Mother with a telephone number for her to contact the child with the Father.  However, history strongly suggests that the Father in particular will make very possible excuse for not complying with even the most basic of Orders, and or protest that he has done exactly what has been ordered but curiously nothing changes in terms of time with or telephone contact.

18. Sadly, the whole situation is an utter mess with absolutely no prospect of any compliance, especially on the Father’s side, with any Court Orders.  In my view, they are essentially futile.

Minute of Orders Sought by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer provided the Court with a Minute of Orders Sought, filed 26^th April 2017.

   1) That THE Mother and Father have Equal shared parental responsibility for the children [Y] born 2003 and [X] born 2005.

   2) The ICL will write to the parties to organise a time for the ICL to meet with [Y] and [X] within the next 21 days.

   3) The Mother and Father will facilitate the meeting between the children and the ICL and will encourage the children to speak with her.

   4) The Mother shall spend then time with [Y] as follows;

   a) For a period of 2 months each second Saturday on the weekend when [X] is also living with the mother, from 1pm to 5pm and that time is to be spent at a place away from the mother’s residence.

   b) After the period of two months has ended each second Friday after school to Monday before school.

   c) Thereafter each alternate weekend from Friday after school to Monday before school and from after school each Wednesday to before school on Thursday.

   d) Each Tuesday night by telephone with the mother to make the call and the father to encourage and facilitate [Y] speaking with her mother.

   5) The Father shall spend time with [X] as per the current arrangements of each alternate week.

   6) For the orders in 2.a., b., c. and d., the Father will do all things necessary to encourage and facilitate [Y]’s relationship with her mother and will transport her to the agreed changeover point.

   7) The Father will explain to [Y] that these orders have been agreed to by the parents and encourage her to comply.

   8) For the purpose of the orders in 2a. and b, the mother will not use any alcohol for 24 hours prior to and during her spending time with [Y].

   Restraints on the Mother and Fathers exercise of Parental Responsibility

   9) That the Mother and Father be restrained from;

   a) Changing the Child/ren’s school without the consent of the other parent; and

   b) Relocating the Children’s permanent residence from the (omitted) region without the prior written consent of the other parent.

   10) The Parents will communicate with the other parent by text message in relation to the Child/ren’s health and wellbeing, medical emergencies and treatment, and will notify the other parent of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.

   11) Each parent will keep the other informed of their current residential address, mobile and landline telephone numbers, and any available email addresses, and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.

   12) The Mother and the father will not make critical or derogatory remarks about the other parent, or their family, in the presence of or within the hearing of the Children and the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family, in the presence of or within the hearing of the child.

   13) The Father will not allow [Y] or [X] to be exposed to any negative comments made by the children’s Paternal grandparents about their mother and will remove the children from the situation if that occurs.

   14) Neither parent will allow the children to read or have access to the documents filed in these proceedings.

   15) That the Applicant Father, the Mother and Second Respondent Father attend upon either a Family Consultant or a Regulation 7 Expert at times to be advised by the Court for the purposes of the preparation of a s 62G Family Report / Regulation 7 Report addressing the issues identified in section 60CC of the Family Law Act 1975 and the Mental Health of all parties.

   16) In the event the Father does not comply with these orders the Court will consider changing [Y]’s residence so that she lives with the Mother.

Submissions by Applicant Father

1. The Applicant Father wrote a letter to the Court on 24^th April 2017, which reads as follows:

   To the Court,

   I received the notes from the Court on Monday the 24th of April 2017 regarding the case between Mr Walton, Ms Rhodes and the independent children's lawyer. There are a few discrepancies in these notes which I like to highlight as these are in my opinion important points as they will give a different view regarding the facts in this case.

   A)

   b) Ms L indicated to me that she only spoke to [X]'s mother, Ms Rhodes, because [X] refused to talk, but Ms L spend a few hours with [Y] and this is in my opinion a very bias situation for the Court to draw a conclusion.

   C)

   [Y] has been to her mother many times but always returned shortly after the visit resulted in a fight and [Y] refuses now to go to her Mother. (letter in possession of Ms Rhodes)

   D)

   ? What view.

   E)

   My father, the Paternal Grandfather, was drawn into it by Ms Rhodes years ago and has always told our children and the step-daughter: Be careful what you say about mum, because mum will always be your mum no matter what happens. He stopped letters written by [Y] to her mother but after being accused in the Court, he stepped back and told [Y] to speak to her welfare officer, Mr F at the (omitted) High School, which she did

   [Y] wrote a letter to her Mother, which I never saw, after a phone conversation between Ms Rhodes and Mr Walton in which Ms Rhodes was very abusive and [Y] reacted. [Y] went to her welfare officer for advise and he advised [Y] what to do and from what I understood, [Y] has written this letter in which she explains why she left her mother. [Y] has also spoken to her Doctor at the (omitted medical centre) in (omitted), I will enclose both contact numbers because this will be, in my opinion, very important regarding any decision/conclusion taken by the Court.

   (omitted) High School:   Mr F     (omitted)

   (omitted medical centre):  Dr P (omitted)

   Regards,

   Mr Walton

Submissions by Respondent Mother

1. The Respondent Mother did not respond to e-mail correspondence sent from the Court to the parties and the Independent Children’s Lawyer on 19^th April 2017 requesting input as to the procedural course the matter should take.

Submissions by the Independent Children’s Lawyer

1. The ICL wrote to the Court on 26^th April 2017, providing information (effectively submissions) in relation to the Minute of Orders Sought. That correspondence was as follows:

   I refer to the above and advise I act as the Independent Children’s Lawyer.

   I enclose the ICL’s proposal and the email from the Court.

   I refer to the last time this matter was before His Honour and the following email from the Associate that the ICL make a proposal to the Court as to how this matter would proceed.

   I am advised that the mother says that apart from the day before the Court date on 7 February 2017, when she says [X] did not want to go to see the father she has complied with the orders. She says she has sent [X] [to] see the father except for a few occasions on the Thursday when she has not wanted to go.

   I note the ICL indicated the day after the last orders the father attended [X]’s school with the grandparents and after that indicated he would not be able to comply with the orders.

   I am instructed the mother has sent [X] to spend time with the father apart from one or two occasions. In contrast the mother has still not seen [Y] for over a year.

   I apologise if there was a misunderstanding that the mother had been completely non-compliant in sending [X] to spend time with the father.

   It is of concern to the ICL that if there is not intervention by the Court, [Y]’s relationship with her mother will be irreparably damaged and this will be damaging to her.

   [Y] is still a child of 13 years and as I have advised both the mother and the father, she made it clear to the ICL that she wanted a relationship with her mother.

   The ICL sees no other way to make it clear to the father the importance of complying with the orders than making it clear the Court has the power to change [Y]’s residence if it views it is in her best interests and if the parties are not able to work together to get her to renew the relationship with the mother.

   Thank you for your consideration in this matter.

Consideration & Disposition

1. The Court can and should note that, in accordance with ss.60CC(2)(b) and (2A) of the Act, its protective responsibilities in the current circumstances must take precedence. Relevantly that section provides that the Court’s primary considerations include … “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

2. Likewise of direct relevance here is s.60CC(3)(b) and (c), which refer to the nature of the relationship of the child/children with each parent, and with (for example, the child’s siblings and other relatives). These sections also refer to the extent to which the parents have taken, or failed to do so, the opportunity to participate in making major long-term decisions in relation to the children, and to spend time and communicate with the children.

3. Other parts of s.60CC(3) refer to a parent’s failure to fulfil his or her obligations to maintain the child, and the capacity of each parent to provide for the needs of the child, including their emotional and intellectual needs.

4. Part of the Court’s responsibility is to ensure that the siblings in this case spend regular time with each other.  To put it somewhat delicately, this is utterly problematic at least in terms of the parental involvement and guidance provided thus far on display over a period of time.

5. A further consideration is the attitude to the child/children and to the responsibilities of parenthood demonstrated by each parent (s.60CC(3)(i)).  Again, in general terms, the evidence and history of the matter does not give the Court any relevant confidence in this regard, especially the Father’s lack of compliance and apparent inability properly to parent his 14 year old daughter.  He seems very much to have allowed either or both of the following to continue to occur: (a) his parents dictate parenting arrangements, and (b) he has abrogated his parental responsibility in many respects to [Y].  In colloquial terms, [Y] is driving the “parenting bus” without little if any direction.

6. In short, the reports by the ICL are consistent with the history of the matter, and therefore very concerning.  There is clearly a significant risk of estrangement of [Y] from her Mother, even in circumstances where she has expressed a clear view to spend time with her Mother but is thwarted from this occurring by the circumstances, of whatever kind, in the Father’s household.  All these matters require further investigation and possibly quite severe action.

7. One thing the Court must make abundantly clear: if there is no change in the Father’s household towards making [Y] available to spend time with her Mother, subject to evidence and submissions, it is very likely that an Order will be made for [Y] to live with her Mother.  More punitive Orders could also be made, that may well include the paternal Grandfather (and Grandmother).  The current situation for [Y] in particular, and relevantly for her Mother, is intolerable and cannot be allowed to continue.

8. In all of the circumstances, in my view the Orders Sought by the ICL are in the children’s best interests, on an interim basis.

9. The matter will be adjourned for further directions to 14 November 2017 at 2:00pm.

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

Date:     11 August 2017