Bamberg and Cardell

[2019] FCCA 2984

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMBERG & CARDELL [2019] FCCA 2984

Catchwords:
FAMILY LAW – Parenting – s.102NA – trial has to be adjourned as mandatory provisions apply – interim oral application for sole parental responsibility and change to week about arrangement.

Legislation:

Family Law Act 1975 (Cth) s.102NA(1)(c)(i)

Applicant: MR BAMBERG

Respondent: MS CARDELL

File Number: MLC 3759 of 2017

Judgment of: Judge Harland

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Melbourne

Delivered on: 24 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Hannan

Solicitors for the Applicant: Emera Smith

The Respondent appearing in person.

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: Westminster Lawyers Pty Ltd

ORDERS

1. As section 102NA(1)(c)(i) of the Family Law Act 1975 (Cth) applies, the respondent is to do all things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable her being represented at the final hearing and the respondent is to apply for said scheme on or before 7 October 2019.

2. The applicant’s oral application for interim orders of 23 September 2019 be dismissed.

3. The matter be adjourned to 3 February 2020 at 10:00am for final hearing (with an estimated hearing time of three days).

4. The applicant rely on the trial affidavit filed 27 August 2019 and file and serve one further updated affidavit of evidence in chief complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 21 days before the final hearing.

5. The respondent file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 21 days before the final hearing.

6. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

7. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

8. At least 72 hours prior to the trial each party provide to the other party/parties and to the Associate to the Judge a Case Outline document as follows:

Parenting

(a)a list of the documents to be relied upon;

(b)a brief chronology;

(c)an outline of contentions with respect to:

(i)whether the presumption of equal shared parental responsibility applies (s.61DA),

(ii)the considerations relevant to equal time and substantial and significant time (s.65DAA);

(iii)each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

(iv)other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

(v)any other matters  relevant to the decision; and

(d)a statement of the precise orders sought

1. Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

2. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

3. Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

4. The costs of the applicant and the Independent Children’s Lawyer be reserved.

AND THE COURT NOTES THAT:

(A)In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a)the filing of documents; or

(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

(B)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(C)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(D)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(E)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3759 of 2017

MR BAMBERG

Applicant

And

MS CARDELL

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was due to commence a three-day trial yesterday. It has been necessary to adjourn the trial for at least three months to enable the mother to make an application pursuant to s.102NA(1)(c)(i) which is a mandatory provision that applies as a result of the mother having been convicted of several offences including several breaches of intervention orders. The effect of the mandatory provision is that the mother, if self-represented, will not be permitted to personally cross-examine the father at the trial.

3. The mother became unrepresented on 18 July 2019. The notice of intention to withdraw and notice of withdrawal filed by her former lawyers do not make any reference to s.102NA, nor does the form provide for that. It occurs to me that that is something that the Court should consider, because it is unfortunate that the trial has to be adjourned in circumstances where this application is made shortly before the trial is due to commence even though the applicant became self-represented several weeks ago.

4. I note the Independent Children’s Lawyer raised this with chambers in the course of compliance checks. The mother says that she was not aware of this issue and has not been informed by her former lawyers. She says she was only aware of the provision when the Independent Children's Lawyer responded to the compliance check. As the provisions are mandatory, there is no scope for refusing the adjournment, as that would have the effect of denying the mother procedural fairness in being able to fully participate in the trial in circumstances where the Commonwealth Family Violence and Cross-Examination of Parties Scheme applies. 

5. Given the necessity to adjourn the trial for this reason, as indicated yesterday, I will make orders pursuant to that provision, but I will direct that the mother make the application to Legal Aid Victoria within seven days. If the mother does not take up that opportunity to apply for the scheme, then the trial, which is now listed on 3 February 2019 for three days, will run regardless, and she will not be able to personally cross-examine the father. She will have been given the fair opportunity to make that application, and that is what the Court’s obligation is. 

6. Both the father and the Independent Children's Lawyer expressed some concern about the mother’s bona fides in this regard, but that is not something that I can determine today. Both conceded that the provision is very clear. Whatever the concerns about the intent of the mother and whether she is seeking to delay the trial, the legislation is mandatory and she is entitled to the benefits of that legislation, as it clearly applies not only to alleged victims of family violence, but also perpetrators. 

7. In the circumstances where the trial has to be adjourned, the father made an oral application for interim orders to be made awarding him sole parental responsibility for the two children, X, aged eight, and Y, aged six, and to change the week about arrangement which has been in place since interim orders were made on 8 May 2018 by consent to an arrangement where, during the school terms, the children spend four nights a fortnight with their mother and live with their father for the remainder of the time. 

8. The father’s application in his case outline filed for the trial sought orders that the mother spend three nights a fortnight with the children and have dinner one night in the off week. For the purposes of his interim application he adopts the position of the Independent Children's Lawyer as expressed in his case outline, acknowledging that the disadvantage of having a dinner on the Thursday night in the off week would be the necessity for there to be face to face handover between the parents, which is particularly problematic given that some of the breaches of the intervention orders have occurred at handovers. 

9. The mother opposes the father’s application to vary the interim orders. The Independent Children's Lawyer also opposes any variation to the interim orders pending trial, and raised two grounds. Firstly, a denial of procedural fairness to the mother, particularly as a self-represented litigant, given that there was no prior notice of the application, and also, that the issues raised are trial and not interim issues. 

10. The father’s position is that it is not unfair to the mother to proceed with an interim application in circumstances where the trial has to be adjourned because of her application, and that otherwise she would have anticipated what the father was seeking in the material that he had filed. The father’s Counsel emphasised the fact that the father has complied with the trial directions, whereas the mother served an affidavit only on 20 September 2019.

11. The father’s Counsel submitted that it cannot be a denial of procedural fairness where material has been filed. But the difficultly with that is that it is the lack of notice of the application being made that is the issue of concern. Nonetheless, I heard submissions from all parties, and I think it is appropriate to determine that interim application. I observe that both the father’s Counsel and the Independent Children's Lawyer’s Counsel made thorough submissions with respect to the material before the Court, and particularly the expert evidence. The father’s Counsel also tendered documents which I will refer to. 

12. I will not repeat all of the submissions that were made with respect to the expert reports, but will refer to some. The father’s Counsel tendered tagged sections of Victoria Police records which were produced on Friday 20 September 2019 pursuant to an updated subpoena. The incidents referred to in those tagged documents date back for many years with respect to the mother’s criminal record, noting that there was a drug offence in 2004 and other drug offences in 2011. This is a matter where the father also has criminal convictions for drug offences and spent time in jail.

13. The other incidents include incidents that occurred in 2016, 2017 and 2018 with respect to numerous breaches of intervention orders, persistent breaches of intervention orders, threats made, and assault. The father’s Counsel also drew attention to the text messages annexed to his trial affidavit, which also formed part of the basis for the convictions. There is no doubt that those texts were offensive, abusive and threatening. 

14. The mother says in response to this that she pleaded guilty to the offences and has expressed remorse for that conduct. The father’s Counsel also tendered an extract from the patient health summary produced again in response to an updated subpoena made available on Friday with respect to the mother presenting X at the Royal Children’s Hospital on 21 January 2018. The presenting problem is described as being the mother’s concerns that X has been displaying inappropriate actions and words, and that she was concerned about him possibly being sexually abused by the father. The doctor recorded that she informed him that she had expressed those concerns to the police and her GP, who had referred her there. 

15. Dr A undertook psychiatric assessments of the parties in May 2018. He did not assess the father as having any psychiatric condition or personality vulnerabilities and did not think that the father needed any psychological or psychiatric treatment. Dr A’s assessment of the mother was quite different. He referred to the mother having vulnerable personality with borderline personality traits and referred to her escalating behaviours and fears of abandonment and rejection. He indicated that the mother should have long-term treatment. 

16. The father’s Counsel also drew attention to Dr A’s reports of the mother, indicating to him that, in her view, equal time arrangement was not working. The mother in response to this submission says that she was referring to her personal views and not the views of the children. I note that the mother’s application at trial was that the children live primarily in her care and spend substantial and significant time with the father. 

17. Both the father and the Independent Children’s Lawyer place some significance on Dr B’s family report, which was released in April 2019. There is no doubt that in reading that report that serious risk issues are raised, particularly with respect to the mother and the children’s long-term welfare.

18. Both Counsel drew attention to paragraph 51 of Dr B’s report, where he refers to the mother’s allegations about the father’s sexual proclivities and possible sexual abuse of X and the children being exposed to his sexual activities. Dr B goes on to state that that would be a substantial and unreasonable step to infer that the father presents some sort of sexual risk, based on his history or sexuality, and further comments that the mother’s allegations were thoroughly investigated by Victoria Police and no charges were brought. 

19. He further commented that neither of the children reported anything in the father’s home environment that caused them to be uncomfortable, anxious or embarrassed. Dr B noted some serious concerns about the mother’s credibility and referred to her having a tendency to misrepresent facts, even during the course of his assessment of her. He did not think that the children were at risk of sexual harm in the father’s care and raised a concern about how far the mother might go to manipulate the situation to her advantage.

20. Dr B agreed with the observations of Dr A, with respect to the mother having borderline personality traits and concerns about her functioning and personality vulnerabilities and the mother’s parenting capacity. Ultimately, Dr B expresses the view that the week-about arrangement, which is currently in place, is contraindicated for a variety of reasons and that a better way to place the variables for the two children would be for there to be an arrangement where the children are in the father’s care for nine nights a fortnight during school terms and with the mother for five nights a fortnight.

21. Dr B referred to the children’s views where they expressed the wish for the week-about arrangement to continue, but expressed the view that limited weight be placed on their views, given their young ages as well, of course, of the risk issues that are raised. Dr B also refers to what is the deep distrust between the parents and their fixed views of each other and the lack of goodwill between them. What he also observed was that although the children have clearly been exposed to the acrimony between their parents but also conflict in the mother’s household and quite possibly family violence, with respect to her partner, I have no doubt that this is one of the issues that will be examined at trial. 

22. He noted that the children had a close relationship with both parents and were currently progressing well, and he did not think that the children had been significantly adversely affected at this stage. As Counsel for the Independent Children’s Lawyer has pointed out, the concerns that Dr B is emphasising are long-term issues. Particularly with respect to as the children get older and start to express independent views and seek to individuate, there is a real concern that the mother will not be able to cope with that and address it. 

23. The other issue of concern that the father points to is ongoing problems with the children attending school late and having days off, and this is something that the children mentioned to Dr B. The father has annexed the school attendance records to his trial affidavit of the children from 2017 to 2019. The father says that this concerning situation for the children would be reduced if the Court makes the orders he seeks today, as he will have the children for a greater portion of time during the school term. 

24. In her submissions in reply to this issue, the mother acknowledged that there have been difficulties with the children’s school attendance in her care. She referred to having moved home and, on some occasions, being ill and having car trouble. I should say that I always find it troubling when the children’s school attendance is inconsistent and when children are also regularly late for school. It tends to have a negative impact and interfere with the children’s education, but also it can be embarrassing for children to stand out from their peers by arriving late.

25. Counsel for the Independent Children’s Lawyer acknowledged that the current situation is not optimal, and there are very troubling issues raised in this case and real concerns about the mother’s long-term parenting capacity and functioning. I accept the Independent Children’s Lawyer’s submissions that the issues of concerns raised in expert material are particularly raising long-term issues that need to be tested at trial, as opposed to there being an immediate unacceptable risk to the children if the current interim arrangements, which have been in place since May 2018 and remain for a further five months until the adjourned trial. She emphasised that this does not mean that the Independent Children’s Lawyer does not have serious concerns for the children’s long-term welfare. The mother disagrees with the expert’s assessments and referred to the assessments being unfair, and, clearly, she will want to test that evidence at trial. 

26. I also note that the exhibits do not refer to there being incidents in 2019. Although that does not lessen the seriousness of the incidents that are raised, it is relevant to the issue as to whether or not I should accede to the request of the father to make interim change to the children’s living arrangements, which are significant. 

27. Whilst the Court has the benefit of trial material and the expert reports, this is an interim hearing, which has its limitations. That has been referred to by courts many times, and the principles that apply in interim hearings are well-known. The court is limited in what it can consider. The evidence is untested. The court is not limited to only considering agreed facts, but it must take into account the allegations raised and make an assessment as to risk. 

28. There is no doubt that there are very serious and troubling issues raised in this case, and that the current arrangement is not likely to be the best arrangement for these children. The court is often faced with making arrangements that are the least worst, rather than optimal, in matters that come to trial. I well understand the concerns that the father raises and the reasons for his seeking the interim orders.  

1. Having considered the detailed submissions by both his Counsel and the Independent Children’s Lawyer as well as the documents that I have referred to, I find that the Independent Children’s Lawyer’s submissions are persuasive. On a fair reading of Dr B’s report, the risks issues he raised, which are serious, are particularly talking about the children’s long-term welfare and not immediate risk. Given this and in the face of serious issues of controversy, which can only be tested and assessed at trial, I am not satisfied that the court should make change to the interim arrangements, which would be significant for the children.

2. It may well be or it is likely that there will be further changes consequent on the trial. I am satisfied that the issues raised are issues that need to be tested at trial and cannot be determined at an interim stage.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 18 October 2019