Bradbury and Lander and Ors (No 2)

[2018] FamCA 1150

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER AND ORS (NO. 2) [2018] FamCA 1150

FAMILY LAW – PROCEDURAL ORDERS - submissions

Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 69ZX(3)

Salah & Salah [2016] FamCAFC 100

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

SECOND RESPONDENTS: Ms B Lander & Mr Lander

INDEPENDENT CHILDREN’S LAWYER: Yeend & Associates

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 20 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Haddock

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing (no appearance for the delivery of judgment)

SOLICITOR FOR THE SECOND RESPONDENTS: Mrs Lander appearing at the interim hearing, no appearance by Mr Lander (no appearance by either party for the delivery of judgment)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

Orders

1. The parties are to direct their submissions to matters that have occurred following the initial making of orders on 3 March 2017 in order to determine what is in Y’s best interests in these proceedings.

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 Bradbury & Lander 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 CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

And

Ms B Lander & Mr Lander

Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. At present it seems that the relevant history of the interim proceedings in this matter are that on 3 March 2017 in the Federal Circuit Court, orders were made by consent for Y to live with the Father and at that stage to spend supervised time with the Mother from 3pm generally on a Monday until 9am on a Thursday of each week.  At that stage the father was granted a sole occupancy order at the former matrimonial home and the CYPS was invited to intervene, an invitation which they subsequently declined. 

2. The matter came back before the Federal Circuit Court on 24 April 2017 and orders were again made by consent.  On that occasion the consent terms provided for Y to live with the Father and provided for Y to spend time with the Mother from Mondays to Thursdays from 4pm to 7pm and on Sunday from 1pm to 6pm without there being a provision for supervision. 

3. Orders were subsequently made in July for the appointment of an expert, and then further orders about Y were made on 28 September 2017.  On that occasion the orders appear to have been made following a contested interim hearing rather than by consent.  Orders were then made for Y to live with her Father and to spend time with the Mother on Wednesdays from 9am to 1pm, Fridays 2pm to 5pm and Saturdays 10am to 3pm. 

4. The matter was then adjourned to 2 November 2017 for specific consideration to be given to whether or not Y should spend overnight time with her Father.  On that day, that is, 2 November 2017, further orders were made by consent by the parties. 

5. At the moment I am dealing with what appears to be on the Court record.  Perhaps you are right that 2 November was not made by consent.  It appears to me that it was.  But in any event, it provided that the Mother would spend time with Y on Wednesdays from 1pm until 5 pm, and there was provision for a Christmas period, and then from January 2018 provision was made for you to have alternate Fridays from 3pm till 12pm on Saturday, which included overnight time, and then in the other week, Friday from 2pm to 5pm and Saturday from 10am to 3pm.

6. On 19 February 2018 leave was granted for the maternal grandparents to join the proceedings.  On 19 March 2018 the proceedings were transferred to the Family Court of Australia and Judge Tonkin vacated the final hearing dates that were previously allocated of 30 April 2018 and 1 May 2018.  On 31 May 2018 I dismissed applications and responses by the parties. 

7. On 21 August 2018 further orders were made by consent, discharging previous orders about the time that the Mother was to spend with Y and providing that she would spend each Friday from 5pm until 1pm on the Saturday and each Wednesday from 1.30pm to 5pm with changeovers to occur at C Group.  That appears by the Court record to have been the progress of the matter.  I note that the Mother disputes whether or not she gave true consent on the first two occasions of consent orders being entered into. 

8. The case of Salah & Salah requires a Court in determining interim proceedings to give consideration to the circumstances of pre-existing interim orders being made, in this case six sets of interim orders, or interim determinations rather, as one of them included a dismissal of applications and responses.  So while the Mother asserts that on two occasions her purported consent was not actual consent, there have been a further number of occasions when the matter has come before the Court either to be dealt with on a contested matter or by consent.

9. I am required by Division 12A of Part VII of the Family Law Act to apply particular principles when I am conducting children’s cases.  One of them is contained at s 69ZN.  That sets out the principle that I am to actively direct, control and manage the conduct of the proceedings.  In doing that, I am required to comply with the duties that are set out at s 69ZQ.  Those duties are there to give effect of the principles such as the one that I have just mentioned.  They include that I have a duty to decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily. 

10. That includes determining that matter for the further interim hearing that is to be conducted today, in the context that determinations about Y have now been made on six occasions to determine what her living arrangements should be, either determinations being made by contest or by consent.  Subject to hearing from the parties, this circumstance tells against anything but a cursory examination of the circumstances leading up to the commencement of the first of those determinations – it also indicates to me, subject to hearing from the parties, that the issues that require full consideration in the context of an interim dispute are those developments post the orders that have been made that impact on whether or not the current interim orders remain in Y’s best interests.

11. I am entitled to rely on those previous orders as being at the time reflective of the best interests of Y, being either made by consent of the parties with the approval of the Court or being made following contest, subject to the dispute that the Mother raises about whether she gave true consent on the first two occasions.  If it is thought doubtful that I am entitled to rely upon those determinations, I note that that approach is also authorised by s 69ZX(3), which empowers the Court to adopt findings made by another Court.

12. Interim proceedings appear to me, at least multiple proceedings appear to me, to be not permitted as a means by which to continually rehash the same ground over and over, and to allow that to occur appears contrary to the needs of the children.  It allows the proceedings to impact too heavily on the children, as parents are exposed to ceaseless repeated litigation dealing with the same subject matter.  That consideration is also one that I am required to consider given the principles for conducting child-related proceedings contained at s 69ZN of the Act.

13. In coming to such a conclusion, if I do come to that conclusion after hearing from the parties, that this approach should be taken, that is, there should be a concentration on the circumstances following the start of the making of interim orders, I do not rule out that some cases require a revisiting of ground that has already been ploughed.  At present, subject to hearing from the parties, I do not think that this is one of those cases.  What renders it particularly inapt to be one of those cases is firstly, the amount of determinations that have already been made in the case, and secondly, that the rehashing of the ground engaged in particularly by the Mother in her material is so characterised by generality and assertion and submission to make it impracticable in the context of interim proceedings to parse the substance from the dross in the material that is presented, at least in a manner that would allow a rehashing of the earlier matters.

14. (Submissions taken from the parties)

15. For the reasons that I advanced to the parties prior to seeking their submissions I direct that the parties are to direct their submissions to matters that have occurred following the initial making of orders on 3 March 2017 in order to determine what is in Y’s best interests in these proceedings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 December 2018.

Associate: 

Date:  27 February 2019