Boreham and Dawkins

[2016] FamCA 158

FAMILY COURT OF AUSTRALIA

BOREHAM & DAWKINS [2016] FamCA 158

FAMILY LAW – Interim decision — leave to parents to each discontinue contravention proceedings —parties able to proceed with oral applications for substantive orders on a number of confined issues.

APPLICANT: Mr Boreham

RESPONDENT: Ms Dawkins

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Werner

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. This matter be adjourned for an interim hearing before me on 12 May 2016 at 9.15 am (“the adjourned date”) estimated to take two hours and the parties each be prepared to cross-examine the Family Consultant at the commencement of the hearing.

2. The contravention applications filed by the father and mother respectively on 17 December 2015 and 23 February 2016 be and are hereby dismissed.

3. The parties have leave to make oral application for orders to vary the primary order made on 23 September 2014 in the terms of the minute marked “H1” and “W1” respectively.

4. Paragraph 4(c) of the Order made on 23 September 2014 be discharged and in lieu thereof:-

   a)The child X born … 2005 (“the child”) spend time and communicate with the father as follows:-

   i)      During the long summer vacation period each year from 5.30 pm on 10 January to 5.30 pm on the day which is two clear business days before the child commences school;

   ii)     At the conclusion of each school holiday period including the long summer holiday the alternate weekend regime will recommence as if the holiday period had not occurred. For the avoidance of doubt, the calendar annexed to this Order specifies the weekends on which the child spends time with the father except where shaded to indicate school holidays.

   iii)    The child’s alternate weekend time with the father continues until 11.00 am on Christmas Eve and is thereafter suspended until 5.30 pm on 10 January.

5. Otherwise and subject to any further orders made on the adjourned date, the primary Order made on 23 September 2014 continues in full force and effect.

6. Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court:-

   a)      The father is to attend at Level 5 of this Registry of the Court at 9.15 am on 18 April 2016;

   b)      The mother attend at 11.00 am on 18 April 2016;

   c)      Neither party cause permit or suffer the child the child to attend the Registry on 18 April 2016 unless directed to do so by Child Dispute Services and whether the Family Consultant interviews the child will be a matter at the discretion of the Family Consultant;

   d)      The Family Consultant may appoint further interviews for the parties and the children;

   e)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court prior to the adjourned date and specifically address the issues as outlined in my reasons for decision delivered this day, NOTING THAT when settled the reasons will be made available to the Family Consultant, and any other matters which in the view of the Family Consultant touch on the welfare of the child and ought to be reported on.

   f)      IT IS REQUESTED that the Family Consultant be available for cross-examination at 9.15 am on the adjourned date and otherwise be available to discuss the matter with the Independent Children’s Lawyer prior to the adjourned date if requested to do so. 

   g)      It is directed that the parties be in a position to cross examine the Family Consultant at 9.15 am on the adjourned date if either wishes to examine her at all. The Family Consultant’s evidence be concluded by 10 am at the latest.

7. That for the purpose of the Children and Parents Issues Assessment in this matter the Family Consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoena and released for inspection by all parties and to any other documents referred to in this Order.

8. That pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child X born … 2005 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the Independent Children’s Lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date NOTING THAT Ms Sue Macgregor has previously been the Independent Children’s Lawyer.

9. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

10. That within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

11. Subject to the views and the convenience of the Family Consultant, any independent children’s lawyer appointed for the child be given the opportunity to meet with the child at the time of any appointment she has with the Family Consultant.

12. In anticipation of the adjourned date, the mother make file and serve an Application in a Case and any material upon which she relies in relation to the issues for determination and the precise orders that she seeks by not later than Friday 25 March 2016 and the husband respond and set out any orders he seeks and file and serve any material upon which he relies by not later than Thursday 7 April 2016.

13. My reasons for decision this day be transcribed and when transcribed a copy be placed on the Court file, sent to the parties and a copy provided to the Family Consultant.

14. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

1. That the letter from Ms MJ, psychologist, dated 15 February 2016 be marked Exhibit “A” and remain on the Court file.

2. That the handwritten orders be marked Exhibit “B” and remain on the Court file.

3. That the calendar as marked up included as part of Annexure “B” be included with these orders and uploaded on to the Court database.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawkins & Boreham 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 8489 of 2009

Mr Boreham

Applicant

And

Ms Dawkins

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter came before me on the first day of the judicial duty list week with competing applications for contravention of orders.  The first in time was the contravention application of the husband filed 17 December 2015, in which he alleged a number of counts, all of which were struck out save for one, in respect of which the cross-examination of the respondent mother had commenced.  The respondent mother’s cross-application was also a contravention application (filed 23 February 2016), of which there were something like 14 or 19 counts.  The hearing of the mother’s application had not commenced when the parties decided to dispense with their contravention applications on the basis that I would determine further parenting issues arising from the final Order made by Johns J on 23 September 2014.

2. There is always some benefit in ascertaining whether previous orders have been contravened or a party has failed to comply.  However, I am satisfied that in this case the more important objective is to obtain orders which provide some certainty for the child who is just 10 and a half years old and hopefully reduce the endemic conflict that exists between her parents and the corresponding burden of that conflict upon her.  I commend the parents for deciding to address substantive issues in preference to contravention applications.  

3. After dispensing with the contravention applications, I read a report by Ms MJ, psychologist, dated 15 February 2016 (exhibit A) and I also read the report of Mr L, psychologist, which preceded the final orders and which is dated 12 August 2014 and annexed to his affidavit of 12 August 2014 (folio 89).  As well, I had read the parties’ affidavit material filed for the contravention proceedings.

4. There are a discrete number of issues on which I am asked to make a determination.  Both parties seek an opportunity to direct further evidence to these issues.  I stress that that material needs to be evidence of factual matters, not arguments or submissions. 

5. An 11F parent and children’s family assessment is available with the parents to be seen on 18 April 2016.  I will leave it entirely at the discretion of the Family Consultant as to whether or not she proceeds to the child and, if so, whether she sees the child alone, with each of the parents or a combination of these. 

6. It occurs to me that the child, at 10 and a half years old, is already beset by a number of problems which arise directly out of hostilities between the parents. I do not want this process to be another forum in which these hostilities are played out. I do not want the s 11F process to leave the child with a further burden of responsibility for her parents’ conflict. I do, however, accept that there might be some benefit to obtaining her views and me then being able to hear evidence about the weight which should be accorded to those views. Accordingly, I leave it to the consultant to specify whether and/or when the child should attend the assessment.

7. The issues, as I understand it, on which the parties cannot agree are as follows:

Extracurricular activities

X currently has commitments to a number of extracurricular activities midweek and on weekends.  She is a busy girl. In the wife’s care some two and a quarter hours and 45 minutes in two activities, and then on the Friday the child has two and a half hours of music class.  Each second weekend, when the father is entitled to spend time with the child, these musical classes infringe to some extent on her time with him.  Her musical endeavours also give rise to competitions, performances, concerts and the like which impinge on the spend-time provision in the final orders.  It is the mother’s proposal that the conditions around the musical activities extend to “such other extracurricular activities”.  The mother seeks to expand the number of activities which would potentially and, I am confident, actually impinge on the child’s time with the father.  The father opposes an extension of the extracurricular activities without his prior written consent.  Withholding or providing consent may be one way to approach it.  My concern is that much damage will be done to the child if she has to convince one or other of the parents of what she wants to do on an extracurricular basis.  That is the sort of burden that the child should not have to have at such a tender age.

Telephone contact

Paragraph 3(h) of the final Order provides that the child contact the father at all reasonable times and at 7 pm each Wednesday when the child is not in his care and that the father allow the child to telephone the mother at reasonable times during alternate weekend and school holiday periods and at 7 pm each Wednesday in the school holiday periods.  The mother seeks further detail to that order whereby she will provide the child with an unsophisticated mobile phone (which I take to be one without internet access) which it is incumbent on the parent in whose care the child is to keep fully charged, turned on and in a mobile telephone area.  The mother seeks that the compulsory calls from each home to the other be increased from 7 pm once a week (on Wednesday) to 7 pm on Wednesdays and Sundays during school terms and at 7 pm each Monday and Friday during school holiday periods.  The father’s objection is that the child does not need a telephone of her own.  It is common ground that the child does not have a mobile telephone of her own and that the mother’s proposal would be introducing mobile telephone use and responsibility to the child for the first time.  The father’s says that each parent has a mobile phone and the child can use the mother’s or the father’s phone.  The father’s further objection is that he does not see the purpose of the child contacting the mother on his alternate weekends which run from Friday to the commencement of school on Monday.  That is, he does not see the purpose of the child telephoning the mother each Sunday night of his alternate weekend time.  In the discontinued contravention application, the mother complained that the father had not permitted the child to call.  The evidence was that the mother had been contacting the father requesting that the child call her rather than the child requesting the father be able to call.  The mother’s position is that the father obstructed calls between her and the child.  The father’s case, as I understand it, is that the child feels somewhat responsible for or obligated to calling the mother and that this responsibility is intrusive of the child’s time with him.  There is also a very strong element in this case of the child reporting back to or surveilling the father’s behaviour.  Anyway, this is a further issue that I have to decide and upon which I would seek expert evidence by the Family Consultant.

Q Club

Counsel for the mother characterises the final point as the most contentious of issues.  Paragraph 18 of the existing orders provided that the father take the child to certain activities, but not all activities were equivalent.  Q Club is something that the child was involved in and the Order required the child’s attendance on the first Sunday of each month unless the father has a significant prior engagement which would prevent such attendance and then the father would discuss his inability to take the child to Q Club with the child.  Obviously, Q Club non-attendance did not involve any prior permission of the mother or that she be at liberty to otherwise uplift the child and take her to the Q Club activity herself in the event of the father’s inability to do so.  The original orders also provided that the father take the child to “all her classes, concerts, competitions and examinations for her curricular and extracurricular activities when the child is in his care and in the event that he is unable to facilitate her attendance at such events, he is to notify the mother in writing within 48 hours of the scheduled event and the mother be at liberty to collect the child from the father to ensure her attendance at such event”.  So this last group of the non-Q Club extracurricular activities compel the father to take the child to those and if he cannot or will not to provide the mother with an opportunity to do so herself.  The mother’s proposal is to make all extracurricular activities and curricular activities of the latter nature; that is, that either the father takes the child or if he cannot, then the mother has the opportunity to do so and the father is obliged to provide her with 48 hours of his inability or unavailability.  This does, of course, need to be read together with the proposed changes by the parents in relation to the extracurricular activities in which the child could be involved.  The mother seeks an open-ended ability to enrol the child in further activities which the child is not involved in at the moment, whereas the father seeks an injunction against either parent enrolling the child in further activities without the prior written consent of the other.

1. It is my intention that the regime put in place by the final Order of 23 September 2014 not be disturbed save for my consideration of the three issues outlined above.

2. I congratulate the parties on having been able to reach agreement on some matters in issue between them.  I have already made an order in relation to the time that the mother will spend with the child when Christmas Day falls within the block period of time that the father is entitled to have the child during the long summer school vacation. 

3. Another matter upon which the parties were able to agree was the attendance of the father at the Father’s Day breakfast which the child’s school regularly holds.  The child attends IH School and on the Friday immediately preceding each Father’s Day the school holds a breakfast at which the child can attend with any members of her family to celebrate Father’s Day.  In this last year the mother attended with her partner and the child’s sibling and the father did not attend.  The father says he did not know about the event.  There was a factual discrepancy that I don’t have to now decide as part of the contravention proceedings.  The mother maintained that the Father’s Day breakfast was advertised on the school’s website for parents and the father maintained that it was not.  The father maintained that notification of the Father’s Day breakfast was sent home by way of a flyer which was not passed onto him and in effect he had been deprived of an opportunity to attend. 

4. The good news is that the parties have agreed that the father will notify the mother not less than 14 days prior to the Father’s Day breakfast of whether or not he will take the child to the breakfast.  If he notifies the mother that he will do so and attends at the mother’s home by 7.30 am on the Friday of the Father’s Day breakfast then neither the mother nor her partner nor any member of the mother’s family will attend the breakfast.  However, if the father fails to give written notice or gives written notice and then does not attend by 7.30 in the morning, the mother may attend with the child.  The parties didn’t specifically agree but it makes sense to me that if the father wishes to go to the breakfast he obviously has to buy and pay for the tickets for the breakfast in accordance with the requirements of the school. 

5. The Father’s Day arrangement should be reduced to a minute of proposed order so that it can be made, by consent, on the next occasion. 

6. The primary Order made 23 September 2014 was partially by consent. The Court and the family had the benefit of an independent children’s lawyer, Ms Sue Macgregor. The parties concur with my view that I should request Victoria Legal Aid to appoint an independent children’s lawyer now to represent the child’s interests for the hearing of outstanding issues. If convenient and/or considered appropriate, the Independent Children’s Lawyer may see the child in the company of the Family Consultant but that can be worked out between the Family Consultant and the Independent Children’s Lawyer.

7. The Family Consultant should read these brief reasons for decision for a description of the issues which require determination.  It will also be open to the Family Consultant to report on any other matter which in the opinion of the Family Consultant is in the best interests of the child that the court know about. 

8. The hearing on the adjourned date will be for not longer than 2 hours. If the Family Consultant is to be cross examined at all the practitioners/parties must be ready to cross examine her promptly at 9.15 am. Any negotiations between parents or pre-hearing conversation with the Family Consultant must be conducted by 9.15 am on the adjourned date.

9. Presumably, the parents and those who advise them would be assisted to know the preliminary view of the Independent Children’s Lawyer well prior to the adjourned date.  I would appreciate any such preliminary view being communicated to my Chambers not later than 4 pm on the working day prior to the adjourned date, by which time the parents will already know of it. 

1. Finally, the procedure adopted today constitutes a departure from ordinary procedures under the Family Law Rules. However, I am satisfied that dispensation with the Rules is appropriate and, accordingly, I permit each parent to proceed with their application by tendering the minutes of orders sought by him/her and making submissions to the Court. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on

2 March 2016.

Legal Associate:

Date: 18 March 2016