Ana and Ana (No 2)

[2011] FamCA 720

FAMILY COURT OF AUSTRALIA

ANA & ANA (NO 2) [2011] FamCA 720

FAMILY LAW – PARENTING – interim suspension of contact

Family Law Act 1975 (Cth)

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: 11 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Perisic & Thomas Lawyers

THE RESPONDENT: In person

Orders

1. That until further order paragraph 4 of the orders made 17 December 2008 is suspended.

2. That the husband have liberty to apply to resume contact pursuant to the said orders on the basis of an application supported by affidavit.

3. That the reasons for judgment this day be transcribed.

4. That subject to any order at the trial to the contrary, all outstanding applications for final orders are listed on 29 September 2011 as an undefended matter.

5. That the wife have leave to issue subpoenae returnable on 8 September 2011 by arrangement with the Registrar.

6. That the wife file and serve any amended application and affidavit in support thereof upon which she intends to rely by 4.00pm on 14 September 2011.

7. That the transcript of today’s proceedings be placed on the file and be made available to the parties.

8. That the husband’s camera confiscated this day be returned to him upon the removal of the photograph that he took within the court precincts.

IT IS NOTED that publication of this judgment under the pseudonym Ana & Ana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

REASONS FOR JUDGMENT

1. These reasons have been prepared and are being published after orders were made in the proceedings between the parties on 11 July 2011.

2. Mr Ana (“the husband”) has requested the reasons for the orders made on that day.  The orders were made in his absence, he having left the courtroom in the circumstances which are referred to below.

3. The hearing took place in a congested and busy environment and what I said at the time was very brief.

4. The husband and wife have been litigating in relation to parenting and financial matters for a number of years.  It would seem that the majority of the proceedings have been in the Federal Magistrates Court of Australia.  From comments made by the husband, the learned Federal Magistrate most familiar with his case was Riley FM.  The court file shows extensive interim hearings. 

5. On 8 April 2011, with both parties appearing in person before Riley FM, her Honour made orders by consent of the parties setting aside property orders made on 3 September 2009. The orders on 8 April 2011 were made pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”).

6. A further consent order was made, although it is not entirely clear whether the parties requested and/or agreed to it, pursuant to s 39 of the Federal Magistrates Act 1999 (Cth) to transfer the proceedings to the Melbourne Registry of the Family Court of Australia. Her Honour placed a notation on the order that the reasons for the transfer were that the matter was complex, the litigants were unrepresented and the hearing was likely to take more than five days. Presumably the hearing to which her Honour was referring was the substantive property issues under s 79 of the Act having regard to the fact that the parties had just consented to the 2009 orders being set aside.

7. The matter was placed before me on 2 June 2011.  It had been before Mushin J earlier and interim orders had been made.

8. On 2 June 2011, the wife was represented by a solicitor and the husband appeared in person.  Having heard the concerns of the husband and having regard to the numerous hearings that had taken place, I made orders for all matters to be adjourned to 11 July 2011 as a first day hearing for the purposes specifically of inquiring as to the issues outstanding between the parties, determining what witnesses were to be called and to allocate the necessary resources for finalisation of all such matters.  Such first day hearings in the Melbourne Registry result in a trial of outstanding issues usually within three or four months thereafter.  It was therefore my expectation that subject to both parties complying with the orders I made on 2 June 2011, the matter would be finalised before the end of 2011. 

9. On 2 June 2011, I ordered the wife to file an amended application by 24 June and the husband a response by 6 July.  The wife complied but the husband did not.

10. The matter came on before me therefore on 11 July 2011.  Mr Hutchins of counsel appeared for the wife and the husband appeared in person. 

11. When I inquired of the husband why he had not complied with the June order, his response was that he had a few things to say.  His complaint was that the wife was represented by lawyers who he said the learned Federal Magistrate had indicated should not be representing her.  I do not propose to set out in the precise details of what then occurred but resort may be had to the transcript should that be necessary.  It was clear that the husband was complaining about the ethics of the solicitors for the wife.  When I required the husband to concentrate on the task at hand, he then said:

    Well, maybe I’m better just to walk up out of here and walk up to the eighth floor, and – where I took my son there last week to show him what I’m going to do.  So – this – I’ve had four years of this.  I had 20 appearances here, I’ve run out of money --

12. When I again tried to draw the husband back to the issues at hand, he complained that the case should have been before the learned Federal Magistrate because that was what he had said he had agreed to.

13. Counsel for the wife complained about the absence of financial disclosure by the husband and discussions about the husband taking a photograph in the courtroom then followed.

14. When I then inquired of the husband what he meant when he said he was going to take the child to the 8^th floor he said:

    Well, I’m contemplating suicide, because I have no financial resources left, I’m forced by the court, and misled by Magistrate Riley and I don’t have any opportunity to regain any financial resources before my retirement.  I don’t get to see my son.  Most of the court orders are broken.  [Ms Q] knows there’s a court order and – already a court order in place to pay me $3200.  It has just been completely neglected.  This is the low level of solicitor that she is, and we’ve had I think nearly 40 appearances including those intervention orders.  I’ve never been in trouble with the police in my life until I come this wife of mine.  It has all been a big setup right from the word go, and now I’ve got no way to defend myself.  What’s left?

    …

    It’s too much pressure on my 85-year-old parents.  The best thing is I not be here.

15. I inquired of counsel for the wife whether he desired to make an application and he indicated that he did, seeking that the time between the husband and the child E, be suspended until further order.  The husband’s response was that he had not been able to see the child and complained that the wife was a psychopath.  The response of the husband was concerning having regard to the earlier remarks to which I have referred about suicide and the fact that he was going to bring the five-year-old child to the court and show him what happened.  He had said that he had done that.  In my reasons for suspending the parenting order immediately, I made reference to the fact that the husband was going to bring the child to the court.  When I made that remark, the husband replied that he had not brought the child to the court.  The transcript shows that he had said that he had.

16. At that point, the husband left the court without making any remark and without returning.

17. I am satisfied that the husband’s remarks about contemplating suicide and bringing the child to court along with his agitated and angry state justified an immediate suspension of the parenting order notwithstanding he was not given an opportunity to properly respond.  I made the order of an interim nature only to give the husband an opportunity to contemplate his position.  Having regard to the statements he had made and in the agitated and angry state that he was, I took the view that there was a real risk for this child.  The husband is at liberty pursuant to the orders to make an application to reinstate the time with his child if he sets out exactly what he meant and what his intentions are for the child’s future.  It is most unfortunate that he left the court when he did.

18. It is important to also understand that I was not in a position to make any finding about whether the husband was right or wrong concerning his criticism of the wife’s lawyers nor of his dissatisfaction with the treatment in the Federal Magistrates Court.  The orders that I made reflect the fact that the parenting issue is not closed.

19. An oral application in circumstances of urgency can be made at any time. (See Chapter 5 of the Family Law Rules 2004). That was the application that was made.

20. The application was a parenting application (see s 65C) and in those circumstances, subject to the issue of parental responsibility to which I shall refer below, the Court may make such parenting order as it thinks proper (see s 65D).  The power of the Court in making a parenting order includes that to suspend an earlier parenting order.  That power has been exercised regardless of the requirements of natural justice having regard to the statements of the husband on the day.  The issue of risk and safety must take precedence.

21. Section 60CA requires the Court when deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration.  Section 60CC requires the Court in determining what is in the best interests of a child to consider the matters then set out.  A primary consideration set out in the section not only includes that the Court consider the benefit of the child having a meaningful relationship with both parents but importantly, the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence.

22. It is hard to imagine a more dramatic exposure giving rise to psychological harm than to take a child to the 8^th floor of a court and explain to him the nature of the litigation in which his parent is involved.  That must be seen in the context of the husband also being in a public forum such as a court room, uttering words relating to contemplation of suicide.  Whilst the two concepts may not be connected, it is the obligation of the Court in circumstances where there is what could only be described as a real risk to the child, to take protective steps for that child.

23. Section 60CC(3) sets out some additional considerations for the Court when determining what is in the child’s best interests.  Those considerations include the nature of the relationship with the child and each of the parents and the willingness and ability of each of the parents to facilitate a close and continuing relationship between the child and the other parent.  Clearly, the husband’s complaint at face value was that the mother was excluding him from the child’s life and thereby not facilitating the relationship.  On the interim basis, that pales into insignificance to the question of the risk to the child.  Section 60CC(3) also requires the Court to consider the capacity of each of the parents to provide for the needs of the child and their responsibilities as parents appropriately demonstrated by their behaviour.  Again, the statements to which I have referred made by the husband in the courtroom must be seen as irresponsible parenting if they were not intended as serious threats to the child.

24. The other matters in s 60CC are not relevant for the purposes of these reasons.

25. Section 61DA(2) brings into play the question of parental responsibility and a presumption concerning the sharing of the parental responsibility.  That presumption need not be applied if the Court considers it is not appropriate in circumstances where an interim order is under contemplation.  Having regard to the interim nature of the proceedings to which I have referred, that presumption is therefore not appropriate in this case.

26. Many litigants in the Family Court system are frustrated by the conduct of the person with whom they are litigating.  Emotions run high and lawyers should be a buffer zone to enable objective consideration of the problems.  In this case, the husband does not have the benefit of that objective buffer zone but that does not entitle him to make statements of the emotive nature that he did if they were not really intended.  Pursuant to the orders that I have made, the husband has an opportunity to contemplate his position properly and satisfy the Court that there is no risk to this child and that it is in his son’s best interests for there to be a parenting order so that the child can have the benefit of a meaningful relationship with him.  In my view however, where there is a clash between the question of having that meaningful relationship and the risk of harm to the child, the latter must prevail.  In my view, in this case that dilemma is exactly what happened on 11 July 2011. 

27. The matter is otherwise set for a hearing on 29 September 2011 in relation to the issues before the Court.  I propose to treat the parenting issue as being a live application before the Court.  I note again the order made on 11 July 2011 which reads:

    The husband have liberty to apply to resume contact on the basis of a proper application.

I certify that the preceding Twenty Seven (27) paragraphs is a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 July 2011.

Associate: 

Date:  9 September 2011