WARDON and WARDON
[2021] FCWA 216
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WARDON and WARDON [2021] FCWA 216
CORAM: DUNCANSON J
HEARD: 17 NOVEMBER 2021
DELIVERED : 19 NOVEMBER 2021
FILE NO/S: [Redacted]
BETWEEN: MR WARDON
Applicant
AND
MS WARDON
Respondent
Catchwords:
CHILDREN - interim parenting - turns on its own facts - role of the independent children's lawyer
Legislation:
Family Law Act 1975 (Cth) s 60CC, s 68LA, s102NA
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms H |
| Respondent | : | Mr I |
| Independent Children's Lawyer | : | Mr J |
Solicitors:
| Applicant | : | Law Firm F |
| Respondent | : | Law Firm G |
| Independent Children's Lawyer | : | Law Firm H |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wardon and Wardon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION
1These proceedings concern the children, [Child A] born [in] 2005 and [Child B] born [in] 2007. Child A is 15 years of age but will turn 16 [this year]. Child B is 14 years of age. The children's parents [Mr Wardon] and [Ms Wardon] have litigated in relation to the children or their property since August 2016.
2Final orders in relation to financial matters between the parties were made on 17 July 2020. Subsequently the parties were involved in enforcement proceedings. A further application has now been made with respect to financial matters.
THIS INTERIM DETERMINATION
3On 4 November 2021 the father filed an application in a case in which he seeks the following orders:
•the matter insofar as it relates to parenting matters be expedited to trial;
•the father spend time with the children;
(a)on [Child A's] 16th birthday, [in] 2021 for a period of two hours; and
(b)on Christmas Day, for a period of three hours.
4The father seeks procedural orders for the filing of documents and the listing of a readiness hearing.
5On 14 November 2021 the mother filed a response to the father's application seeking that his said application filed 4 November 2021 be dismissed. Both parties filed affidavits in support of their applications, all of which I have read carefully.
SHORT RELEVANT HISTORY
6The history to the matter is important because it is relevant to the children's circumstances in which they currently do not have a relationship with the father. On 11 December 2017 orders were made by consent for the children to spend time with the father during school terms from after school Friday to the commencement of school Wednesday in each alternate week commencing 2 February 2018.
7Children's and property matters were listed to proceed to trial in July 2019. After meeting with a family consultant, the children's matters were separated from the property proceedings on the basis that the parties would engage in family therapy. On 1 August 2019 it was ordered by consent that [Ms K] be appointed to undertake reportable family therapy with the children and the parties.
8Judgment in the property proceedings was handed down on 17 July 2020. Orders were made providing that the mother with whom the children live, vacate the family home.
9Difficulties with respect to the children's time with the father began in about March 2020. For a period of time, Child A spent time with the father, but Child B did not.
10The children spent time with the father at Easter 2020, although there were difficulties between Child B and the father. On a subsequent visit there were again difficulties between Child B and the father and Child B was returned to the mother's home early.
11Thereafter Child A spent time with the father, but Child B did not.
12The father took Child A to [Regional Town A] in July 2020. Child B did not accompany them. [In] July 2020 the father received a text from Child A expressing disappointment at the outcome of the financial proceedings and informing him Child A would have no contact with him until they have a house to live in.
13Child B has not spent time with the father since April 2020 and Child A has not spent time with the father since July 2020.
14On 19 October 2020, an order was made that the children be independently represented, and [Mr J] was appointed Independent Children’s Lawyer ("the ICL").
15The father attended the family home [in] January 2021 to read the electricity meter. The mother obtained an interim family violence restraining order against him, including with respect to the children.
16On 10 March 2021, an order was made enforcing the orders previously made for the mother to vacate the family home with the order to take effect at 2.00 pm that day.
17On 3 May 2021, dispute resolution took place, but no agreement was reached.
18On 13 May 2021, the ICL circulated a minute of consent orders sought by him. The ICL proposed that all previous parenting orders be discharged, and the children live with the mother. He proposed the children spend time with the father in accordance with their wishes and the mother do all things reasonably necessary to facilitate that time should the children wish it. Agreement could not be reached with respect to the ICL's minute.
19The father deposed that he had difficulties with the family therapy with Ms K and since engaging in family therapy with her, the family relations have deteriorated exponentially.
20On 12 October 2020, Ms K produced a report in which she reported as to the progress made during family therapy.
21Ms K had appointments with the parties and the children between 30 August 2019 and 23 September 2020.
22Ms K reported that latterly Child A was unhappy in the father's home since there was an escalation of conflict between the father and Child B. Child A discussed the father being angry with Child B, swearing at her and being derogatory about the mother.
23Ms K reported Child A could see the direct impact of lack of finances on the mother's household. Child A told Ms K he felt less stressed by not seeing the father and he felt the parents' disagreements had taken a toll on him and affected his ability to study well.
24Ms K reported that it took time for Child B to be comfortable to talk, partly due to [Condition A], but mainly due to her distrust over what might be shared with the father and repercussions which might follow. Child B described being sworn at by the father, when he used foul language to her as set out in Ms K's report, and the father telling her he wanted "her mum to rot in [Country A]". Child B felt the father invaded her privacy and described conflict between her and her father which caused her to be highly stressed.
25In her summary, Ms K stated that the children have currently chosen not to see their father. Their stated reasons stem from anger in the household involving some ongoing conflict from their father towards Child B as well as their father sharing hostile feelings about the mother. The children stated it is easier for their mental wellbeing to live in the mother's household. Ms K believed both children have been heavily compromised emotionally and psychologically since separation as hostile litigation has taken over their parent's lives. She reported neither child is currently able to look to the future as the court case is still in progress and issues with their father will not improve until the case is over.
26The ICL interviewed the children. At that time the parties contemplated obtaining a report as to the children's views, possibly by [Mr L], Ms K or a family consultant. At the hearing neither of the parties, nor the ICL, sought an order that a report as to the children's views be obtained.
27On 18 July 2021, the ICL conducted telephone interviews with both children. Child A informed the ICL he did not want to have contact with the father or the paternal grandmother, although he would see her if she was critically ill. He did not want to have any interaction with Mr L whom he said he could not trust to reproduce his views. Child A was confident in talking to Ms K because in his view, she accurately reflected what he said to her.
28Child A did not agree the mother had alienated him and his sister from the father, he said the mother provided better and more gentle care, was less exacting, controlling and less aggressive than the father. Child A's only request to the father was for the return of some items.
29Child B also reported to the ICL she did not wish to be interviewed by Mr L whom she described as a "phony". She too appeared to be aware of the contents of his report. She did not wish to see the father, although qualified this by saying he must make the first step, he should be nicer and ensure she is looked after. Child B also preferred to speak to Ms K. She said she is going well at school and the only message to be conveyed to the father was for the return of items.
30In his analysis the ICL was of the view that the children had detailed knowledge of the reports of Mr L and K. He described the children as "clearly weary of the litigation" and would prefer not to speak to anybody but, if anybody they would trust Ms K and not Mr L who they did not believe would accurately report what they have said.
31The ICL repeated that the children are suffering from litigation "battle fatigue". He is of the view one of the reasons the children do not wish to see the father is because for them it is the most pragmatic way they can deal with the litigation and the attendant emotions and trauma that follow.
32On 17 August 2021, orders were made by consent cancelling the family violence restraining order.
33On 18 August 2021 the ICL interviewed the children in person. When asked how they were doing, Child A replied "okay, and Child B reported she was going well.
34Child A said he did not wish to see the father at all in the short or medium-term. He is unhappy with the way the father has treated him and his sister and mother. Child B did not wish to see the father in the short, medium, and long-term.
35Both children expressed concerns about continuation of the litigation. The ICL reported both appeared to have been significantly traumatised by the separation and the process. Child A said it had a negative effect on his schooling. The children were non-committal as to whether they would accept cards and gifts from the father. They said they know where he is, works and know how to contact him. They explained not seeing him is a way to deal with the dispute.
36The children discussed their schooling with the ICL with Child B saying she really likes school and is generally getting on well, but Child A saying the travel to [School A] was difficult and wishing to change schools.
37Child B referred to moving house several times. The ICL referred to both children being anxious about their future.
38The ICL concluded the children are significantly traumatised by the conflict and suffer a level of stress and anxiety that is significantly above their peers. They attribute their current situation to the way the father has treated the mother and themselves. They have clearly expressed their wishes that their voices be heard. Their strategy is to distance themselves from the father and align with their primary caregiver.
39The children do not wish to see the father in the short and medium-term and the ICL sees no utility in family therapy. The ICL reported the children are suffering from what some professionals call "system abuse".
40The ICL submitted that if orders are made and in extreme circumstances, a change of residence, the children would not conform. They would not engage in family therapy and if forced to spend time with the father, would run away.
41The ICL opined the children need long-term relief from the dispute and everything incidental to it to enable them to recalibrate and reset their lives. He sees no utility in going to trial.
42The ICL acknowledged the impact this would have on the father in this situation which he described as a difficult and tragic. He recommended the father consult with experts to develop strategies and to lay the groundwork to re-establish his relationship with the children at some stage in the future, probably when they are adults.
43On 15 November 2021, the father filed a minute of final orders sought. The father proposes that the children live with him and that he have sole parental responsibility for them. He proposes to enrol the children in [a family program] to enable and assist the children to live with him.
The parties' positions
44The father's position is that the children are enmeshed in the dispute and influenced by the mother. It is the father's belief that the children have read the reports of Mr L and Ms K, which have been made available to them by the mother. He is concerned about the welfare of the children by reason of the views they harbour about him. The father seeks firstly to spend time with the children on two important events which are approaching, namely Child A's birthday and Christmas; and secondly, to expedite the proceedings.
45The father’s position is that it is in the best interests of the children that these matters be resolved before the entrenchment becomes worse.
46Counsel for the father submitted it was inappropriate for the ICL to have informed the children that his overall objective was to end the litigation and his strategies would be to that end.
47The mother's position is that the children's experiences, for example the conflict between Child B and the father and the necessity for the mother to move out of the home and be homeless, have caused the children to form their own views as to what they want. She denied disclosing the contents of Mr L's report to the children and alleged that the father read the report to them at a time when they were living with both parties. The father denied this. Counsel for the mother said the children asked Ms K about the terms of her report.
48The ICL appears to have gone to great lengths to develop a relationship with the children and to convey their views to the Court. He relied on the terms of his report to the Court as to those views. In his submissions the ICL said the children have a strong sense of identity. The litigation has had an effect upon them, and they have suffered trauma as a result of the strategies of the father and vicarious trauma by reason of five years of dispute. The children have the ICL's contact details and he will endeavour to facilitate some contact between the children and the father, subject to the children's wishes.
THE ROLE OF THE ICL
49Section s 68LA of Family Law Act 1975 (Cth) ("the Act") sets out the role of the ICL.
50Subsection (2) provides:
(2)The independent children's lawyer must -
(a)form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
51Subsection (5) sets out the specific duties of the ICL as follows:
(5)The independent children’s lawyer must -
(a)act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings -
(i)analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court’s attention;
and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
52In this matter the ICL has formed an independent view, ensured the views expressed by children have been fully put before the Court and he has provided an analysis in his report identifying the most significant matters in determining the best interests of the children.
53I consider that the ICL has fulfilled his duties diligently and his reports have been of considerable assistance to me.
THE LEGAL PRINCIPLES
54These are interim proceedings only. I am unable to make any findings in fact and that cannot be done until the evidence has been tested at a final hearing.
55Ms K's report and the earlier report of Mr L are comprehensive ones. I am mindful however that this evidence as with all of the evidence in the matter has not yet been tested.
56Child A and Child B's best interests is the paramount consideration. To determine what orders are in their best interests I must consider the primary and additional considerations as set out in the Act at s 60CC to the extent I consider them necessary and relevant. There is much contested evidence in these proceedings, and therefore I can only give limited consideration to these matters.
57The children do not have a relationship with the father at this time. As to risk, the father alleges their relationship with the mother is one which has caused them to be enmeshed in these proceedings and the dispute between the parties. The father's position is that this poses a risk to the children.
58The ICL concluded the children are traumatised by the conflict and suffer stress and anxiety significantly above that of their peers.
59Of importance in this interim determination are the views of the children. Their views have been clearly stated to both Ms K and subsequently to the ICL. Child A is almost 16 years of age and in terms of his maturity his views should be given weight. Similarly, Child B is 14 years of age and, notwithstanding her Condition A, is said to be forthright in her views. The ICL reported the children have a stronger sense of their own identity and are becoming more forthright and demanding in what they want. He described them as likeable, articulate, and sensible young adults.
60The father's position is that the children have been influenced by the mother who has caused them to be enmeshed in the proceedings as described above.
61It is apparent from the ICL's report that the children are aware of the terms of the reports of both Mr L and Ms K. It is highly likely that they are directly aware of the mother's stated financial difficulties and the practical difficulties this imposes upon them.
62They are acutely aware of the conflict between their parents and want relief from it.
63It appears the children have a close relationship with the mother, with whom they have aligned themselves. The ICL reported that a strategy they have employed to deal with trauma is to distance themselves from the father and be aligned with their primary attachment and caregiver, the mother.
64There is practical difficulty in relation to the children spending time with the father in that if they refuse to attend, it is unlikely they could be forced to do so. I take into account that the father is prepared to accept any conditions which the Court may seek to impose with respect to the children's time with him, including supervision.
65I can make no finding as to the parties' respective capacities to provide for the children's needs at this time in view of the highly contested and conflictual evidence. I note however the ICL's report as to the children's presentation to him.
CONCLUSION
66The children's views have been clearly stated and fully put before the Court by the ICL. I place weight on his report as to those views. I am unable to find that an order for the children to spend time with the father is in the best interests of the children when it is so clearly contrary to their wishes.
67I am mindful that the children are unlikely to be persuaded to see the father in the short or medium-term and the children need relief from the dispute.
68I have concluded that an order which is in the best interests of the children is one which is subject to and in accordance with their wishes. I intend to order that they spend time with the father either around the times of Child A's birthday and or at Christmas on that basis. While I am mindful of the need to avoid further trauma to the children, it is intended to send a clear message to them that firstly, their views have been heard by the Court and given weight and secondly, the Court encourages them to see their father if they wish to do so.
69The order is very much intended to keep the door open to the resumption of a relationship between the children and the father but on their terms at this time.
70I do not intend to make an order that the mother use her best endeavours to ensure that the children spend time with the father. Having regard to the strength of the children's views and their ages, I think to do so might be futile and it is an order that may lead to further proceedings, including contravention proceedings.
EXPEDITION
71On 30 November 2020 orders were made entering this matter into the defended list. A readiness hearing is awaited. The father sought expedition on the basis that the children risk being harmed by their ongoing enmeshment in the proceedings. The mother supported by the ICL opposed expedition of the proceedings and she disputed the allegations of enmeshment.
72I am not persuaded that it is appropriate to make an order that the hearing of the proceedings be expedited. The matter has been in the defended list for some considerable time. Although the proceedings raise issues which are serious and of great importance to the parties and the children, I am not persuaded they should be placed ahead of other matters of similar urgency and complexity.
THE ORDERS
Children
1The children [CHILD A] born [in] 2005 and [CHILD B] born [in] 2007 spend time with the Applicant, [MR WARDON] as follows:
(a)on or around the time of [Child A]'s birthday, [in] 2021;
(b)Christmas;
(c)at any other time;
subject to and in accordance with the children's wishes.
2The Applicant is at liberty through the Independent Children’s Lawyer to provide gifts and cards to the children.
3All interlocutory parenting applications be dismissed.
Financial
4Within 28 days the Respondent, [MS WARDON] shall file and serve a Form 1A response, an affidavit of evidence on which she relies and a Form 13 financial statement.
5Within 28 days the Respondent shall file and serve a Form 2A (enforcement) and an affidavit of evidence on which she relies.
6The proceedings be listed for interim hearing on a date to be advised, with an estimated hearing time of half a day.
AND upon the Court noting that one or both parties have indicated an intention to cross-examine the other at the trial of the proceedings, and that there is an allegation of family violence between them:
AND further noting that the parties have each been notified by the Court:
(a)that pursuant to the following order, neither party is permitted to cross-examine the other party personally;
(b)that pursuant to the said order, any cross-examination of either party must only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer;
(d)that a copy of these orders will be provided by the Court to Legal Aid Western Australia, which administers the said scheme; and
(e)that Legal Aid Western Australia will be advised that the Applicant is currently represented by a legal practitioner.
IT IS ORDERED THAT:-
7The requirements of s 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.
8The Court forthwith cause a copy of this order to be forwarded to the Respondent.
9The Court forthwith cause a copy of this order to be forwarded to Legal Aid Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
SI
Associate
28 MARCH 2022
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