Beattie and Demyan

[2011] FamCA 1065

FAMILY COURT OF AUSTRALIA

BEATTIE & DEMYAN [2011] FamCA 1065

FAMILY LAW – application for interim orders – order to facilitate preparation of a Family Report

APPLICANT: Ms Beattie

RESPONDENT: Mr Demyan

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:  NCC  2026 of 2009

DATE DELIVERED: 12 December 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not relevant

SOLICITOR FOR THE APPLICANT: Ms B. Manning

COUNSEL FOR THE RESPONDENT: Not relevant

SOLICITOR FOR THE RESPONDENT: Applicant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not relevant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not relevant

Orders

1. The application for interim order 1 set out within the Initiating Application filed on 25 October 2011 is dismissed. 

2. The application for interim order 3 set out within the Initiating Application filed on 25 October 2011 is dismissed.

3. The applications for interim orders numbered 1, 2 and 3 set out within the Response to Initiating Application filed on 21 November 2011 are dismissed.

4. Pursuant to section 68L of the Family Law Act, the child, R, born … 2009, shall be independently represented, and the Legal Aid Commission of New South Wales is requested to arrange such representation.

5. The parties shall within seven days hereof provide to the solicitor in charge of the Family Law Section, Legal Aid Commission of New South Wales, Newcastle office, copies of the following documents filed by them:  

   (a)The following documents filed by the mother:

   i)The Initiating Application, filed 25 October 2011,

   ii)The mother’s affidavit, filed 30 September 2011, and

   iii)The Notice of Risk of Child Abuse or Family Violence, filed 30 September 2011.

   (b)The following documents filed by the father: 

   i)The Response to Initiating Application, filed 21 November 2011,

   ii)The father’s affidavit, filed 21 November 2011, and

   iii)The paternal grandmother’s affidavit, filed 21 November 2011.

6. The Registrar of the Family Court of Australia at Newcastle shall forthwith forward a sealed copy of these orders to the solicitor in charge of the Family Law Section, Legal Aid Commission of New South Wales, and Newcastle office.

By consent it is further ordered

1. Pursuant to section 62G of the Family Law Act, a Family Consultant (other than Ms D) shall prepare and furnish to the Court a Family Report concerning the child R, born … 2009, touching upon those matters of relevance to the care, welfare and development of the child.

2. In order to facilitate preparation of the Family Report:

   (a)Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the family consultant.

   (b)Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the Family Consultant.

   (c)The Family Consultant is granted leave to inspect the court file and all documents produced on subpoena.

It is further ordered that

1. The trial of the parties’ outstanding applications for fresh parenting orders is adjourned to 9.30 am on Tuesday, 27 March 2012 for further procedural directions. 

2. The Application – Contravention filed by the father on 24 March 2011 is adjourned to 9.30am on Tuesday, 27 March 2012 for further mention only.

Notations 

(A)Mr Alan Scally was formerly appointed as the Independent Children's Lawyer in proceedings between the parties that were concluded on 9 March 2011, and the Court requests consideration to the reappointment of Mr Scally as the Independent Children's Lawyer in the current proceedings.

(B)The parties will be independently notified of the time and date of their appointments with the Family Consultant, but those interviews are currently expected to occur on or about 22 February 2012.  

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 2026 of 2009

Ms Beattie

Applicant

And

Mr Demyan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT  

1. Before the Court for determination today are applications by the applicant mother and respondent father for further interim orders.  It is necessary to place today’s interim hearing into context. 

2. The Court determined prior parenting proceedings between the parties on a final basis on 9 March 2011, at which time final orders were pronounced in relation to their child R, born in 2009. 

3. Neither party appealed against those orders, but the father subsequently filed a contravention application on 24 March 2011 alleging that the mother was failing to comply with the parenting orders made only weeks before. That contravention application has been adjourned to today for mention only.  That is because it has been overtaken by subsequent events. 

4. The mother filed an affidavit on 30 September 2011, together with a Form 4 Notice of Child Abuse or Family Violence, although it should be noted the affidavit and notice were filed in the absence of any pending proceedings for further parenting orders. I presume in the circumstances that those documents were intended to be an answer to the contravention application filed by the father on 24 March 2011, which was still pending.

5. In any event, the mother subsequently filed an Initiating Application on 25 October 2011, in which she sought a raft of final parenting orders and some interim orders.  The purpose of the Initiating Application was to discharge the orders made on 9 March 2011 and enjoin the Court to conduct a fresh hearing about further final parenting orders. 

6. The father responded by filing his Response to that Initiating Application on 21 November 2011.  He too proposes both final and interim parenting orders, and it is also the desire of the father for the Court to conduct another hearing to review and effectively reverse the parenting orders made in March 2011.

7. The matter was listed for interim hearing before the Court today.  The interim hearing was intended to entertain:

   (a)The application by the mother for the interim orders set out within her Initiating Application filed on 25 October 2011, and

   (b)The application by the father for the interim orders set out within his Response filed on 21 November 2011. 

8. In support of her application, the mother relies upon:

   (a)Paragraphs 119 - 126 inclusive of her affidavit filed on 30 September 2011,

   (b)the Form 4 Notice of Child Abuse or Family Violence filed on 30 September 2011,

   (c)The criminal conviction of the father recorded at E Town Local Court on 24 November 2011 (Exhibit M1), and

   (d)The final apprehended violence order made by the E Town Local Court on 24 November 2011 in favour of the mother against the father (Exhibit M2).

9. In support of his application, the father relies upon:

   (a)His affidavit filed on 21 November 2011, and

   (b)The affidavit of the paternal grandmother filed on 21 November 2011. 

10. By reference to the interim orders sought in the parties’ respective Initiating Application and Response, the Court is required to determine the three issues.  They are as follows: 

    (1)Whether the existing parenting orders made on 9 March 2011 should be stayed, as the mother desires, or enforced, as the father desires;  

    (2)Whether the Court should appoint an Independent Children's Lawyer for the purposes of their respective pending applications for final parenting orders;  and

    (3)The appointment of a single expert witness as proposed by the mother.

11. I shall deal with the second and third issues first because they are more easily disposed of. 

12. In respect of the appointment of an Independent Children's Lawyer, neither party adduces any evidence at all about that issue.  However, the previous proceedings which were concluded in March 2011 did involve an Independent Children's Lawyer. That person was Mr Alan Scally of the Legal Aid Commission of New South Wales. Although neither party adduced any evidence in the interim hearing about reappointment of the Independent Children’s Lawyer, I am satisfied that an Independent Children’s Lawyer ought participate in the proceedings to advocate for the interests of the parties’ child.  Accordingly, an Independent Children’s Lawyer will be appointed. 

13. The mother has also advocated for the appointment of a single expert witness.  Again, that is not an issue upon which either party has adduced a scintilla of evidence.  In the proceedings concluded in March of 2011, a Family Report had been furnished to the Court by a Family Consultant of the Child Dispute Services operating within the Newcastle Registry of the Family Court of Australia, albeit that that Family Consultant had ultimately left employment with the Child Dispute Services and become an independent consultant.

14. I am aware from past proceedings between the parties that they each contend some degree of difficulty in their financial circumstances.  I therefore have reservations about their financial capacity to pay for the procurement of a report from a single expert witness. 

15. Not only did neither party adduce any evidence about the appointment of a single expert witness, neither party made a single submission about it.  I am therefore left without any explanation as to why a single expert witness should be appointed, with the expense that will necessarily entail, in preference to the appointment of a Family Consultant, as occurred in the last round of litigation between the parties. 

16. Having regard to the deficiency of evidence and submissions on the point, I intend to reject the application for the appointment of a single expert witness, and I expect that in due course I will make a procedural order appointing a Family Consultant to furnish the Court with a Family Report.

17. Accordingly, I am left to determine the remaining contentious issue, which is whether the orders made on 9 March 2011 ought be stayed or enforced. 

18. The sum total of the evidence adduced by the mother on the issue goes to prove that, on 7 September 2011, the father assaulted the mother in the presence of the child, which event resulted in the prosecution and conviction of the father for the offence of “assault occasion actual bodily harm”, for which he was sentenced before the E Town Local Court on 24 November 2011. The sentence comprised a fine of $1000 and a good behaviour bond for a period of two years, conditioned that he comply with the terms of any current apprehended domestic violence order. Concurrently with that conviction, a fresh apprehended violence order was made against the father for the protection of the mother for a period of two years. 

19. Although it is common ground that the father has appealed against his conviction and sentence, and also apparently about the imposition of the apprehended violence order, as the evidence currently stands, the following facts are incontrovertible – the father assaulted the mother on 7 September 2011; that assault occurred in the presence of the child; and the father has been convicted, which means that another court has found the allegation proven beyond reasonable doubt. It is also apparent from the affidavit material adduced by the mother that the assault was more than trifling.  It resulted in lasting injury to her in the form of gross bruising and abrasions. 

20. The father was well aware of the affidavit material filed by the mother on 30 September 2011 when procedural orders were made entitling him to file his affidavit material relevant to today’s interim hearing.  When the father filed his affidavit on 21 November 2011 he made no mention at all of the incident on 7 September 2011. Consequently, as things presently stand, there is no contest at all about the occurrence of the incident on 7 September 2011. 

21. The submission of the mother is, effectively, that the occurrence of the serious incident on 7 September 2011 of itself should operate to suspend the parenting orders made in March 2011.  That submission is predicated on the provisions of sub-sections 60CC(2)(b), (3)(j) and (3)(k) of the Family Law Act, which influence the Court’s determination about the child’s best interests. For his part, the father also drew the Court’s attention to the child’s best interests, with particular reference to sections 60B and 60CC of the Family Law Act.

22. It is clear from the affidavit material filed by the father that, from the very moment that parenting orders were made by this Court on 9 March 2011, the mother has not diligently nor faithfully complied with those orders.  Just as the issue of the assault on 7 September is not the subject of controversy, nor is the fact that the mother has not diligently complied with the orders.  She does not address that in the material which is put before the Court for the purposes of today’s interim hearing. The allegations of the father about the mother’s intermittent and unsatisfactory compliance with the Court’s orders between March and September 2011 remain unchallenged.

23. At this point, having regard to the paucity of affidavit evidence, I draw no nexus between the commission of the father’s assault upon the mother and the father’s continuing frustration at the mother’s refusal to faithfully comply with the orders made in March 2011.  There may be some causal nexus, but there is insufficient evidence presently before the Court to demonstrate it. 

24. The procedure for conducting an interim hearing has been authoritatively established by Goode & Goode (2006) FLC 93-286. At paragraph 68 of that judgment, the Full Court said:

    ...the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future.

25. When the Court comes to apply those principles, together with the provisions of the Family Law Act, I am not satisfied that the orders made on 9 March 2011, following a thorough and comprehensive contested hearing, ought be disturbed on an interim basis. 

26. For those reasons, I dismiss the application of the mother for a stay or suspension of those orders. 

27. Equally, the father’s proposition for some form of enforcement of those orders is beyond the scope of the Court’s remedial powers, based on the nature of the applications described in his Response to the Initiating Application.  

28. The upshot of that determination is that the orders made on 9 March 2011 will continue to prevail, and the Court will continue to expect compliance with those orders by both parties.  That is not to excuse the father’s commission of the assault committed upon the mother on 7 September 2011, which will no doubt feature significantly as an issue in the re-contested proceedings for further final orders.

29. I need to amend my reasons.  Where I said there were three issues, there are four issues.  The fourth issue is the father’s proposal for the mother to be restrained from moving more than 50 kilometres from F Street, G Town.  I will need to amend my reasons to deal with that issue.  

30. The father proposed as an interim order a restraint upon the mother prohibiting her movement, presumably of her residence, beyond a point 50 kilometres from an address disclosed as F Street, G Town.  Neither party adduced any evidence in relation to that order, nor made any submission in relation to it.  Consequently, the application for that order is dismissed.  It necessarily follows that if the orders made on 9 March 2011 are to continue to operate then the mother will have to live at a place with sufficient proximity to the father to enable proper implementation of those orders.  

I certify that the preceding thirty (30) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 12 December 2011.

Associate:

Date:  15 February 2012