BOSWELL & BOSWELL

[2019] FamCA 111

FAMILY COURT OF AUSTRALIA

BOSWELL & BOSWELL [2019] FamCA 111

FAMILY LAW – CHILDREN – Parenting – where father has matter relisted for alleged non-compliance – no non-compliance alleged in proper form proved – leave to father to make oral application for orders to clarify interim parenting orders.

FAMILY LAW – CHILDREN – Parenting – short form reasons for orders on some issues requiring clarification or supplementary orders.

APPLICANT: Mr Boswell

RESPONDENT: Ms Boswell

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: MLC 11319 of 2013

DATE DELIVERED: 1 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boswell in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Rothschild

SOLICITOR FOR THE RESPONDENT: Elisa Rothschild Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Dr O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Macgregor Solicitors

Orders

(As Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 on 15 February 2019)

IT IS ORDERED THAT

(1)This matter be fixed for final hearing before me on 15 July 2019 at 10.00 am estimated to take 5 days (“the final hearing”).

(2)The mention on 15 March 2019 be vacated.

(3)Paragraph 2(j) of the Order made on 7 November 2018 be and is hereby varied so that the communication take place between 6.30 pm and 7.00 pm on Thursdays.

BY CONSENT IT IS ORDERED THAT:

(4)The parties do all acts and things necessary to ensure that the children X born … 2009, Y born … 2011 and Z born … 2012 (“the children”) attend upon Dr B (or an agreed alternate paediatrician if Dr B is not available) for the purpose of assessment of the children’s behavioural issues and the provision of strategies, and follow all reasonable direction and referral of Dr B.

IT IS FURTHER ORDERED THAT:

(5)Where the parties’ time (pursuant to all orders) is suspended during school holiday time and special occasions and Jewish holidays, the regular cycle provided for in paragraph 2(g), (h) and (j) of the Order made on 7 November 2018 shall resume as if the parties’ time had not been suspended, unless otherwise agreed between the parties.

(6)Each party file and serve an undertaking as to disclosure by 1 April 2019.

(7)In anticipation of the final hearing, each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, as follows:-

a)     The applicant father by not later than 13 May 2019;

b)     The respondent mother by not later than 29 May 2019;

c)     The father in reply by not later than 7 June 2019.

(8)I relieve the parties from compliance with Rule 15.08(2)(b) of the Family Law Rules so that all annexures identified in an affidavit are to be attached to the affidavit and accepted for filing.

(9)Pursuant to section 62G(2) of the Family Law Act 1975 a full family report be prepared.  For that purpose the parties and children X born … 2009, Y born … 2011 and Z born … 2012 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 25 March 2019 and be released by not later than 11 April 2019 AND IT IS NOTED THAT an earlier report/child and parent issues assessment has been prepared by Ms C.

(10)The independent children’s lawyer forthwith advise my Associate – email … – in writing if the report of Dr B is not going to be available, in respect of all children, before 25 March 2019.

(11)The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

(12)For the avoidance of doubt the family consultant, Ms C, be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

(13)The independent children’s lawyer forthwith ensure that

Ms C, the family consultant; and Dr B, paediatrician each have a copy of the other’s report(s) in this matter together with any other document which the independent children’s lawyer considers would assist either expert to give evidence in these proceedings and in respect of which the other parties do not raise an objection.

(14)The independent children’s lawyer facilitate such conference (including a conference by telephone) between the said expert witnesses as she considers appropriate and in respect of which she provides the other parties with prior written notice.

(15)Until further order, notwithstanding any other order to the contrary, the parties and any independent children’s lawyer by at liberty to provide any mediator or expert with a copy of all relevant expert reports in this matter including, but not limited to, family reports and parent and children’s issues assessments.

(16)IT IS DIRECTED that any party wishing to cross examine on a document or tender a document into evidence at the final hearing, ensure that his or her counsel has a minimum of 5 copies of any such document available at the time of cross examination, evidence or proposed tender (being a copy for counsel for each party, a copy for the witness and two copies for the Court).

(17)IT IS DIRECTED that the independent children’s lawyer give consideration to preparation of a court book of documents to be referred to or tendered during the trial and contact my Chambers well prior to the final hearing if he/she thinks that a court book would assist in the expeditious running of the hearing.

(18)The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, within two weeks of the new family report being released and the independent children’s lawyer notify my Associate … as soon as possible of the date and time of the conference, once appointed.

(19)IT IS REQUESTED that the family consultant, Ms C, be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 17 of this Order.

(20)Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-

a)     any family report;

b)     any document referred to in this Order;

c)     any document filed in these proceedings and any transcript of viva-voce evidence of a family consultant; and

d)     any other report by a professional in this matter that the independent children’s lawyer considers is necessary.

(21)The mother be restrained from approaching or remaining within 5 metres of the father save and except for the time spent arrangements in extant parenting order which require them to be in closer proximity.

(22)The father’s application for further injunctions for his personal protection in relation to the mother’s presence near or within the vicinity of his residence or work be and is hereby dismissed.

(23)The father’s application for alteration of the interim mid-week spend time orders made on 7 November 2018 be and is hereby dismissed.

(24)The father’s application for alteration of the time arrangements for Pesach be and is hereby dismissed.

(25)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:

(26)That the minute of proposed orders of the father be marked Exhibit “F1” and remain on the Court file.

(27)The minute of orders of the independent children’s lawyer as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED BY THE COURT:

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

B.That the parties are to be respectful of each other’s time with the children and not to disrupt that time by approaching and unnecessarily engaging with the children in the event that they happen to see the children whilst in the care or under the control of the other party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9662 of 2012

Mr Boswell

Applicant

And

Ms Boswell

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT[1]

1. On 7 November 2018 I made a raft of interim parenting orders about X aged 10 years, Y aged seven years and Z aged six years and, at paragraph 8 of the Order, I reserved liberty to apply on short notice in relation to any alleged non-compliance with this Order and directed that such application be listed before me in the event that I am reasonably available. The substantive parenting proceedings are listed for mention on 15 March 2019 at which time it is intended that they be allocated a final hearing date.

2. In an affidavit made 9 December 2018 the father purported to exercise the liberty to apply in respect of non-compliances with regard to telephone communication, arranging a behavioural assessment, school enrolment, time spent and injunctions. The father has not filed a contravention application in accordance with the Family Law Rules 2004 and has misunderstood what rights were reserved. It would be easy enough to refuse to deal with the father’s unorthodox application. Indeed, the solicitor for the wife submits that is what I ought to do. However, this is a case of extremely high parental conflict, the parents are at court and I perceive that refusing to deal with these glitches will disadvantage the children

3. I will deal with some of the issues by allowing the father to proceed with an oral application in those respects. I note that the mother has responded on affidavit to the husband’s grievances. She is not prejudiced. I will deliver short form reasons delivered pursuant to s69ZL of the Family Law Act 1975.

4. The father relies on his affidavit made 9 December 2018 and the affidavit of Mr D made 11 December 2018. The mother relies on her affidavit made 31 January 2109.

5. In these reasons a statement of fact is a finding of fact.

Telephone communication

1. By paragraph 2(j) of the Order made 7 November 2018, the father is able to communicate with the children by telephone and/or Facetime each Thursday between 6:00pm and 6:30pm with the father to place the call to mobile phone number provided by the mother and the mother facilitate the call.

2. It is common ground that the father has not called at 6 pm. His employment has meant that he has usually called closer to 6.30 pm and has sought to have his communication time extend past the hour of 6.30 pm.

3. The father informed me that, on the day that he consented to the order, the was advised by counsel who appeared for the independent children’s lawyer that it was only necessary that the father place a call to the children between the hours of 6:00 pm and 6:30 pm and that he could speak to the children for half an hour notwithstanding that conversation might conclude after 6:30 pm.  The discussion is not admitted on behalf of the mother. However, it is not necessary for me to decide whether the discussion occurred because the proposition on which the father alleges he has acted is wrong.

4. The order which I made entitles the father to speak with the children from 6:00 pm to 6:30 pm., not to call before 6:00 p.m. or extend his conversations with the children (or any of them) after 6:30 p.m. There was a rider about further time on “the request of the children”. However, it is ambiguous drafting and there is no evidence of a child making a request.

5. Telephone or electronic communication must be for the benefit of the children.  It is not for the benefit of the children if, as the mother deposes, the children are sitting waiting for a call that doesn’t arrive until nearly 6.30.  It is preferable, in my view, to change the time for the telephone communication to be 6.30 p.m. to 7:00 p.m. 

6. The mother says that the children should be in bed by 7 o’clock.  I accept that this variation means that the children will be up later than usual. I understand from the mother’s perspective that the children may not simply complete the electronic communication and then fall asleep.  It might mean that they are later to bed by half an hour or so, but the children should speak to their father.  The new time for electronic communication is, in my view, appropriately 6.30pm to 7 pm with the father to initiate the call.  I am satisfied that’s in the best interests of the children.

Injunction

1. There’s an application by the father for an order that the mother be restrained by injunction from approaching or remaining within 200 metres of the father’s place of residence or work or from approaching within five metres of the father, save where changeover arrangements and the parenting orders provide that that is necessary.  That replicates paragraphs 24 to 26 of an Order which I made on 10 September 2014 which is still extant and which prohibited the father from approaching the mother and places she frequents.

2. Independently of submissions made by Mr Rothschild, I do not make tit for tat orders.  Because one party has an order, it doesn’t mean that another party is entitled to an order.  However, I am satisfied on the evidence that there was at least one instance of the parties being in fairly close proximity to each other.  The current state of the orders is that the father can’t approach within five metres of the mother except in special circumstances.

3. I am not satisfied that the father’s evidence supports orders in relation to his residence or his place of work. However, in relation to his person, where there is an order that the mother cannot approach within five metres of the father, the mother ought not to be able to approach within five metres of the father.

4. I am satisfied that the people who will be the most protected by a mutually enforceable five metre no-go-zone are the children. They will have their parents at least five metres away from each other which, I am satisfied, will be in accordance with the best interests of the children.  As much as it might disturb the mother to have an order imposed upon her, I am trying to is to protect the children from a confrontation between their parents.

Further time spent

1. In this matter, the husband seeks a variation of interim parenting arrangements which were settled by orders sought by consent and made by me on 7 November 2018.  He seeks to change spend time arrangements from Tuesday to Wednesday evenings. He points to ongoing conflict.  This family is beset by ongoing conflict.  It is not a change of circumstances or a new issue that has arisen. 

2. The Court should not entertain lightly repeated applications for interim orders. What the father seeks goes beyond clarification and removing doubt and uncertainty.

3. The father says that there has been non-compliance with the order about denigrating each party and that is a further basis for altering the days.  His allegations, if finally accepted, are very serious.  I will look very carefully at the kind of allegations which the father makes about the mother’s conduct and the impact of that alleged conduct on the children at a final hearing, not today.

Final hearing appointed

1. I do propose to accede to the request of the independent children’s lawyer to list the matter for trial today rather than wait until the mention which was to occur on 15 March. 

2. There will be a family report prepared followed by mediation between the parents and the independent children’s lawyer through the Victoria Legal Aid Round Table Dispute Management Service in the week commencing 4 March 2019.

3. A hearing of 5 days duration will commence on 15 July 2019.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 February 2019.

Associate: 

Date:  4 March 2019