Aldanas and Meinhart

[2018] FCCA 2710

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDANAS & MEINHART [2018] FCCA 2710

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged six – parties have poor and mistrustful relationship – mother alleges coercive and controlling family violence – father alleges mother has poor mental health.

Legislation:

Family Law Act 1975, s.11F

Applicant: MS ALDANAS

Respondent: MR MEINHART

File Number: ADC 71 of 2017

Judgment of: Judge Brown

Hearing date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Adelaide

Delivered on: 25 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Boehm then Mrs Read

Solicitors for the Applicant: Spencer Gulf Law

Counsel for the Respondent: Mr Roberts

Solicitors for the Respondent: N J Ireland

ORDERS

UPON NOTING the order of 10 May 2017 shall continue in full force and effect.

BY CONSENT THE COURT ORDERS THAT:

1. The application in a case be adjourned and considered at trial.

2. The final hearing before Judge Brown on 1 & 2 November 2018 at 10.00am is confirmed.

3. The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 4 October 2018.

4. The respondent file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 18 October 2018.

5. The mother be at liberty to file a responding affidavit to the father’s trial affidavit, limited to four (4) pages on or before 24 October 2018.

6. On or before 18 October 2018 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

7. The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

8. The parties file a case outline on or before 30 October 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 71 of 2017

MS ALDANAS

Applicant

And

MR MEINHART

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally.  They have great moment for the parties concerned.  Ultimately, I have decided that the difficult issues, which the case raises, should be dealt in the context of a final hearing, rather than in a truncated interim hearing.

2. However, I acknowledge the controversy and difficulty of the issues, which arise in the matter, particularly given the tender years and vulnerability of the child who is their subject.  For these reasons, it is appropriate the reasons be transcribed.

3. This afternoon, I have to deal with some proceedings in which Ms Aldanas is the applicant and Mr Meinhart is the respondent. 

4. The parties are the parents of a little girl, [X], who was born on 2012.  So [X] is six years of age and will be seven in about seven months’ time. 

5. Ms Aldanas, to whom I will refer as “the mother” in these orally delivered reasons for judgment, commenced these proceedings on 11 January 2017.  I appreciate that that is now around 18 months ago.  She requested that her application be dealt with urgently.  At that stage, she sought on, an interim basis, an order that [X] be delivered up into her care either by Mr Meinhart, to whom I will refer as “the father”, or  if he did not cooperate, by the police if necessary. 

6. At that stage, it was the position that she was not exactly sure where Mr Meinhart or [X] were living.  It was for this reason the potential involvement of the police was sought.  The implication of her order being that the police should be engaged to search out [X] and the father. 

7. For self-apparent reasons, this is a significant order for a court to make.  It does not help parents to have a cooperative arrangement for the care of their child if a court makes orders after hearing from only one of them.  It is potentially traumatic for a child to be removed from a parent by police officers.

8. As I recall, Ms Aldanas was born in 1986.  Mr Meinhart is about five years older than she is.  The parties met when they were both young, particularly in Ms Aldanas’ case.  She was only 15 when she and MR Meinhart began their relationship. 

9. In her affidavit, the mother very frankly acknowledged some of the past difficulties in her life, particularly a tragedy which befell her when a boyfriend was subject to a fatal accident.  In this context, she acknowledges this led her to make some bad decisions in the past.

10. She concedes that, from time to time, she had issues with alcohol consumption and suffered from depression.  Against that background, she formed the relationship with Mr Meinhart.  It is the flavour of her case that Mr Meinhart was able to exert undue influence over her.  I accept that five years for a person who is in their mid-teens is a significant age gap. 

11. In any event, it is Ms Aldanas’ position that the relationship between her and Mr Meinhart was not an equal one.  It is her position that during the relationship Mr Meinhart was coercive and controlling towards her.  Other significant difficulties arose in it.  When Mr Meinhart was aged about 22, he suffered a very serious accident when he was working on a car and a jack gave way, causing the car it was supporting to fall on top of him, breaking his back in two places. 

12. As a consequence of those injuries, he has not been able to work and suffers from a chronic level of pain.  Ms Aldanas, to her credit, seems to be very much a self-starting person.  She has deposed that when [X] was six months of age, she went back to work and supported the family because Mr Meinhart could not.  She concedes that whilst she was at work, Mr Meinhart cared for [X], but it was also her case that the two were inseparable when she was not at work. 

13. In her affidavit, Ms Aldanas has also given details of the difficult upbringing which the father had.  He was raised subject to the guardianship of the Minister for Child Protection.  As with many children, that was not an easy process for him and it is, I think, clear that Mr Meinhart suffers the emotional sequelae of that experience. 

14. Ms Aldanas’ application was dealt with comparatively urgently and was given a Court hearing date of 27 February 2017.  She filed a further lengthy affidavit shortly prior to that hearing.  Annexed to her affidavit were a lot of text messages, which she had received from Mr Meinhart.  There is no doubt that those text messages were disturbing.

15. It is likely to be embarrassing for Mr Meinhart if I publicly describe some of those messages, but in general terms, it is the mother’s position that the father was utilising [X] as a means to get her to provide sexual relations to Mr Meinhart, who did not accept that the relationship between the two had ended. 

16. The mother’s position is that the parties separated at some time, I think, towards the end of 2016, but I may be mistaken about that.  In any event, after the parties separated, it is her case that Mr Meinhart utilised [X] in an attempt to control her and get her to come back to the relationship.

17. Mr Meinhart responded to the application on 23 February 2017.  It was his position that he had been the parent who had provided more of the care for [X] during the parties’ relationship.  He had his own criticisms of Ms Aldanas.  He acknowledged that he had had a serious injury but it was his position that the mother had overstated his level of disability and its impact upon his ability to care for [X].  Accordingly, in February 2017, the parties were in disagreement about very many issues to do with [X] and their past relationship with one another. 

18. On 27 February 2017, the parties were each represented by barristers.  As is often the case, the barristers negotiated with one another.  At the early interim stage it is very difficult, if not impossible, for the Court to make findings of fact about where the truth lies. In these circumstances, no doubt barristers provide advice to their respective clients about these problems and the dangers which can arise at the interim stage.

19. In these circumstances each of the parties drew back from having an interim determination.  Rather they agreed that they would essentially share [X]’s care on an equal basis.  They reached a consent position and it was reduced to writing which both parties signed. 

20. It is frequently the case that people enter consent orders because they fear that the alternative – that is, a decision from the Court, which may be less favourable to them than the one which has been offered up in negotiation.

21. The orders envisaged the child spending three nights and then four nights with each parent.  From Ms Aldanas’ point of view, the desirability of this outcome was that she would able to reengage straight away with [X], from whom she had been separated for a significant period of time.

22. From Mr Meinhart’s position, for obvious reasons, he continued to be closely involved with [X], but he was not at risk of the Court, perhaps, preferring Ms Aldanas’ view of him and forming an adverse view about the dangers of [X] being exposed to family violence. 

23. At that early stage, it was also ordered that the parties be referred to a family dispute conference, which was convened by Family Consultant Ms A pursuant to section 11F of the Family Law Act, which authorises the court to obtain advice from a family consultant.

24. In her report prepared in brief form on 1 May 2017, Ms A summarised the positions of each of the parties.  At that stage, Ms Aldanas indicated her view that Mr Meinhart had serious psychological and psychiatric issue and needed to commit to some form of therapy if he was to be a capable parent for [X].  She believes that his issues related to his traumatic childhood which may have been re-triggered by the relationship breakdown between and her and him. 

25. For his part, Mr Meinhart asserted that the shared care arrangement was working well from his perspective.  Ms A appears to have been somewhat dubious about this, given [X]’s tender years.  She was concerned that that arrangement was not suitable for [X], given her likely level of development.    

26. She also considered that Mr Meinhart quite possibly did have some mental health issues, which she thought might be driven by his feelings of having been abandoned as a child.  Ms A also had some concerns also about the photographs which had been sent by Mr Meinhart to Ms Aldanas. 

27. In these circumstances, Ms Aldanas ordered that an urgent family report be prepared.  The matter returned to Court, as I recall, on 10 May 2017.  I ordered that a report be ordered urgently.  Ultimately Ms A was tasked with compiling the more extensive report into the needs of the family, particularly [X].

28. In addition, on that occasion, again, the parties were represented by experienced barristers and there was, again, an agreement on the time spending arrangements for [X].  The case was adjourned until August and Ms A’s report was released to the parties on 2 August 2017. 

29. At that stage, sensibly, the parties agreed that they would attempt to discuss what Ms A had said in the report at a conference.  Ms A’s report is complicated.  Essentially, it reiterated her earlier views arising from the 11F intervention. 

30. [X] was interviewed by Ms A, who recorded verbatim what [X] said.  She said that “dad had been mean to mum” and that “he had kept mum outside”.  She complained that her dad had hit the dog.  She also said that she felt sad when “daddy hadn’t let her see her mummy”.  Significantly, when asked who gave her the most cuddles, she replied, “mummy”. 

31. Ms A, of course, has an advantage over me in these proceedings in that she has seen [X] interacting with each of her parents.  Ms A was concerned that Mr Meinhart had some difficulties in how he structured his play with [X] and how he answered her questions. 

32. When Mr Meinhart left the observation, he hugged [X] and it was Ms A’s observation that [X] appeared to stiffen and turn her head away.  When Ms A saw Ms Aldanas with [X], she reported that [X]:

    “Squealed with delight and jumped into her arms and her mother picked her up and held her.”

33. Mother and child then had a discussion about various things of no great moment.  But it was Ms A’s view that Ms Aldanas capably structured her play with [X] and, in this context, they had a game of eating pizza and watermelon about which Ms Aldanas says this:

    “The most noteworthy aspect to this observation was the higher energy level in the child and the mother’s greater capacity to structure the play and engage imaginatively with the child.  As well, the child appeared to delight in the mother’s presence and this was clear when she jumped into her arms when the mother first entered the room.”

34. Accordingly, one of the central issues in the case is the respective psychiatric histories of each of the parties and, in this context, both parties have had prepared, on their behalf, a psychological assessment.  In the father’s case, he has consulted a Mr W who is a forensic and clinical psychologist who practices in Adelaide and, in Ms Aldanas’ case, she has consulted a psychologist, Ms J, who practices in Suburb P.

35. Mr W, after reviewing Mr Meinhart’s history, regarded Mr Meinhart as having a low/average intellectual level of functioning, although he presented as a sociable and extroverted person.  There was no evidence of mental health disorder, but the psychologist, Mr W, observed what he described as a, “significant constellation of personality features” which he ascribed to Mr Meinhart’s traumatic and difficult upbringing. 

36. Mr Meinhart, for no fault of his own, was described as not having had a nurturing and loving environment when he was a child himself.  In these difficult circumstances, Mr W considered that Mr Meinhart was likely to have a turbulent personality indicating a propensity to be impulsive, unpredictable, reckless, easily bored and he was also quite possibly likely to be prone to anger and anxiety.  But for all sorts of reasons he lacked insight into these features. 

37. In this context, Mr W opined that these features rendered Mr Meinhart’s potential to be child-centred in his approach to a child open to question of concern.  So on any view, Mr W’s report was significant.  However, once again, it has not been subject, as yet, to any detailed scrutiny.

38. Ms J described Ms Aldanas as meeting the diagnostic criteria for having an adjustment disorder with mixed anxiety and depression.  She also reported that she was experiencing stress from her perception that Mr Meinhart was stalking her. 

39. Ms A was aware, I think, of these reports and, in her own report recommended that Mr Meinhart consult Mr C for psychological support and counselling.  Mr C has expertise in anger management, as I understand it.

40. Significantly, in the light of the current proceedings, she also recommended that the mother have the primary care of the child concerned and that Mr Meinhart’s time with her be severely restricted to daytime only on weekends, with an intervening period, possibly for an after school dinner date during the school week.

41. These were significant and controversial recommendations.  Perhaps it was not surprising, against this background, that the parties were not able to reach a consensus at the Legal Services Commission conference, which they were directed to attend, as a condition of the grant of legal aid to each of them for any scheduled trial. 

42. The matter came back to Court on 20 November 2017.  I think Mr Roberts will be aware and indeed Ms Read is aware that I do not like ordering a family report without allocating a date for final hearing in tandem with the order for such a report. 

43. The reason I do not like doing this is that, firstly, the family report is not to assist the parties resolve a case - although clearly is very often has that effect – it is to help me to determine what is the appropriate outcome in the case concerned; and secondly, if a final hearing is not allocated, in conjunction with such a report, there is the potential for it to become stale or overtaken by events before any necessary hearing date. 

44. In any event, the culpability must rest with me.  I did as the parties requested and ordered a report without giving the parties a final hearing date.  I did this because the parties had been able to agree on arrangements at an early stage and I was hopeful they would again and the report would be useful in this context.

45. When the matter came back into Court in November, I did allocate some hearing dates.  At that stage towards the dates available were towards the end of 2017.   The time available for final hearings was limited and regrettably I could only give a date in a year’s time.  Obviously if I had been able to and if I had made the order earlier, there would not be that delay. 

46. The matter was adjourned to 25 July 2018 at 9.30 for the trial directions to be made.  In the meantime, on 22 May 2018, Ms Aldanas brought an application.  Her application, essentially was for the Court to make orders in the terms Ms A had recommended. 

47. It is essentially her position that, given the strong recommendations made by Ms A and the vulnerability of [X], it is simply too long to wait until the final hearing, for the difficult decisions, which necessarily must be made to secure [X]’s best interests.  It is her position that everything she has deposed in her affidavit material to date has been vindicated by Ms Aldanas and the psychological reports which have obtained, particularly in respect of Mr Meinhart. 

48. She in effect says to the Court, “do something now otherwise you are abrogating your responsibility for [X]”.  I can understand why Ms Aldanas would say so.  In the ordinary course of events, Ms Aldanas’ interim application was listed for mention on 19 June. 

49. On that day, it was the position of Mr Roberts that difficult as the case was, nonetheless Mr Meinhart was entitled to put his case and his evidence, particularly, no doubt, his position that Ms A’s opinion is wrong and her methodology flawed, to the Court, at the final hearing, as scheduled.

50. It was submitted by Mr Roberts that, if I dealt with the issue on a provisional basis, it would abrogate the need for a final hearing and that would not fair to his client nor likely to be in [X]’s best interests, it being conceivable that, at trial, I would not accept Ms Aldanas’ evidence and her recommendations and that, in fact, Mr Meinhart would present very well in Court. 

51. On the other hand, it was the position of Ms Cocks, the barrister who appeared for Ms Aldanas on that day, that I should do something urgently.  Anyway, on 19 June, bearing in mind that at that stage it was three or four months away from trial, I was not prepared to change the orders and I adjourn the matter to the date today when the matter was already listed. 

52. As I have indicated already, this morning, Mr Boehm of counsel indicated in a very strenuous and forceful manner, as he is required to do, that his client was aggrieved with that decision and, in this context, I said that I would re-read the papers very closely and reconsider the position, which I hope I have done.  Given the summary of the case, I have provided up to this stage I hope that is self-apparent.

53. The case presents a dilemma.  The parties disagree about arrangements for the care of their daughter.  They want me to make findings of fact about all manner of things in respect of their relationship.  I have read their affidavits but at this point, I have not seen either of them in the witness box. 

54. I have not seen either of them answering difficult questions, which are likely to be put to them by the other’s lawyer, in the challenging environment of the witness box.  I do not know how they each will present at the final hearing. 

55. In an ideal world, I should be able to have the final hearing as soon as is possible and at the best possible time for all the parties concerned.  But I and no-one else lives in a perfect world and certainly the system for adjudicating family law disputes is far from perfect. 

1. The other thing is that although I have the highest respect for Ms A, she does not decide the outcome of these cases – that is my job alone.  I decide cases after hearing all the evidence, including evidence elicited through cross-examination.   It is through cross-examination that courts determine issues of credit – essentially deciding who is to be believed and who is not.  There are many issues of credit in the current case.

2. It is also possible that Ms A has overlooked something in the case.  It is also possible that I may have a different view of Mr Meinhart to Ms Aldanas or differ with her at some important aspect of the case.  At this stage, in these circumstances, I have to be careful to avoid pre-empting the need for a final hearing, particularly when such a hearing is available within a comparatively short compass.

3. The parties agreed on these arrangements for [X], which were implemented, by consent, at an early stage of proceedings.  These orders were not initially forced upon them.  I can understand how frustrating this process is from Ms Aldanas’ point of view, but at this stage, the final hearing is not an unreasonable period of time away. 

4. In this context, I have to assess the risk of [X], in the short to medium term, until that hearing can take place.  Although very serious concerns have been raised about Mr Meinhart and his level of insight, it is clear that he has a significant level of relationship with [X] and it is not said that [X] has come to any physical harm, since the court orders were made. 

5. The allegation is one which relate to the risk of emotional harm befalling [X].  Clearly the parties have very grave difficulties in exercising parental responsibility for [X] and in such circumstances, it is submitted that a shared care regime is simply not appropriate and has come about more as a sop to the parents’ feeling rather than any proper analysis of [X]’s needs. 

6. Whether the presumption of equal shared parental responsibility will be applied in this case must be moot.  What is the best outcome for [X] is uncertain.  But, in my view, balancing the immediate concerns with the desirability of there being a full investigation of these matters, the risk is not one which is unacceptable for me to take. 

7. So for those reasons, I am going to reiterate my decision that there not be a change in arrangements for [X]’s care on an interim basis given the fact that the final hearing is not a huge amount of time away.  So that is what I am going to do.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     2 October 2018