BRICE & BRICE
[2010] FamCA 984
•5 November 2010
FAMILY COURT OF AUSTRALIA
| BRICE & BRICE | [2010] FamCA 984 |
| FAMILY LAW – CHILDREN – lengthy hearing 2006 – application for dismissal – relying upon principals set out in Rice v Asplund – father’s application in respect of parenting dismissed |
Family Law Act 1975 (Cth)
| Rice v Asplund (1979) FLC 90-725 Wickham v Jones [2010] FamCA 837 | |
| McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010 | |
| APPLICANT: | Mr Brice |
| RESPONDENT: | Ms Brice |
| FILE NUMBER: | CSC | 329 | of | 2007 |
| DATE DELIVERED: | 5 November 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 & 22 September 2010 |
REPRESENTATION:
| COUNSEL FOR THE APPLICANT: | Mrs Benson |
| SOLICITOR FOR THE APPLICANT: | Farrellys Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jacobs |
| SOLICITOR FOR THE RESPONDENT: | The Law Office |
Orders
The father’s application in respect of equal shared parental responsibility is dismissed.
The father’s parenting applications in respect of the child F is dismissed.
The parties are given leave to file evidence in respect of the following issues (“the issues”):-
a.Whether the chid F should be entitled to express his own views as to the time he spends with and how he communicates with the father.
b.Whether the time the children V and P spend with the father be increased to alternate weekends (from after school Friday until the commencement of school Monday) including overnight time.
c.The time V and P should spend with the father over school holidays and other special occasions.
d.Whether the father’s passport ought to be retained by the Court.
All other pending applications between the parties are dismissed save and except the respective parties’ costs applications.
The interests, in these proceedings, of the children V, P and F be independently represented by a lawyer and it is requested that the Legal Aid Commission of Queensland arrange for an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or make copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Cairns.
Forthwith upon the appointment by the said Legal Aid Commission of Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
In the event the Independent Children’s Lawyer seeks a contribution for costs on behalf of the mother such application is to be determined by agreement or by application to the Court.
An updated Family Report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services, such appointments being made in the first two weeks of August 2011 and the report to be completed by the second week of September 2011.
For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents.
The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
The parties shall attend and ensure that the children attend all necessary appointments for the preparation of the Family Report.
The question of the report writer can be determined by me at an interim hearing listed for mention at Cairns in the May 2011 sittings.
All outstanding costs application be dismissed unless there is an application to relist such application or applications within the time prescribed by the Rules after the making of these orders.
The father pay the hearing fee or seek remission of the hearing fee (and pay the reduced remission fee) on or before 4.00pm 30 June 2011 and in the event the father does not pay the hearing fee by that date or apply to have the fee remitted or pay the balance of the reduced fee if part is remitted, the father’s application is summarily dismissed.
The father file and serve an affidavit in respect of the events effecting the issues by himself, his partner and Mr Y on or before 4.00pm 30 June 2011. The father is entitled to rely upon the affidavits he has previously filed in these proceedings since the commencement of proceedings in July 2010 subject to the father providing written notice to the mother’s legal representative and the Independent Children’s Lawyer of his intention to rely on that material on or before 30 June 2011.
The father be otherwise restrained from filing further material in respect of this application without the leave of the Court. If the father files no further affidavit by himself on or before 4.00pm 30 June 2011 then his application is summarily dismissed.
The mother be granted leave to file an affidavit by herself and her partner and specify any of her affidavits already filed in these proceedings since July 2010 upon which she relies on or before 4.00pm 29 July 2011.
These proceedings be listed for a two day hearing before me in the September/October 2011 circuit at Cairns and to be included in the call-over for such circuit.
Leave be given to the parties and the Independent Children’s Lawyer to apply to have the matter relisted on the giving of fourteen (14) days notice to the Court.
UNTIL FURTHER ORDER
The father is required to surrender all passports to the Registrar of the Family Court at Cairns. Such passport to be released to the father with the written consent of the mother or as otherwise ordered by a court exercising jurisdiction under the Family Law Act 1975 (Cth).
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Brice and Brice is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 329 of 2007
| MR BRICE |
Applicant
And
| MS BRICE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Brice (“the mother”) and Mr Brice (“the father”) have three children F aged about fourteen, V aged about ten and a half and P aged about nine.
On 29 July 2010 the father filed an application seeking final and interim orders. In his application for final orders the father asks that the parenting orders made in the Federal Magistrates Court on 6 July 2007 be discharged and that there be orders for equal shared parental responsibility and equal time. The father seeks other consequential orders.
On 25 August 2010 the mother filed a response to the father’s application seeking orders that the father’s application be dismissed and that the father pay the mother’s costs of the proceedings.
The mother seeks dismissal of the proceedings based upon the principals set out in Rice v Asplund (1979) FLC 90-725.
The primary issue is whether or not the matters raised in the new material make it necessary or proper and are in the best interests of the children to allow further proceedings, and if so the scope of those proceedings. The Court will give consideration to the importance and seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require re-visiting the earlier decision.[1]
[1] Collier J in King & Finneran (2001) FLC 93-079
BACKGROUND
The parties have a complex factual background. The father is aged 50 and the mother is aged 43. Both parents were born in Germany.
The parties married in Germany in June 1995. F was born in October 1996, V in March 2000 and P in July 2000. F has been diagnosed with epilepsy and Attention Deficit Disorder (“ADD”).
In May 2005 the parties moved from Germany to Australia, in particular far north Queensland. The mother, who practices a profession, took up a position in far north Queensland.
In December 2005 the parties separated and in January 2006 the mother re-partnered. The mother alleged that she was subjected to episodes of violence by the father. I will deal with this allegation later when discussing the reasons of the learned Federal Magistrate.
In January 2006 the father removed the children from the Commonwealth of Australia and returned to Germany with the children without the mother’s knowledge or consent. The mother applied for return of the children from Germany to Australia pursuant to the Hague Convention and the Abduction of Children Treaty.
In January 2006 the mother commenced proceedings in the Family Court of Australia in Cairns. An order was made for return of the children to Australia in February 2006 and they were in fact returned to Australia in 2006.
The father returned to Australia in late March 2006. In April 2006 interim orders were made by Coleman J including placing the children on the Airport Watch List and restraining the father from removing them from Australia. In April 2006 Coleman J also made orders that the children live with the mother and spend time with the father on the condition he lodge his passport at the Family Court.
The mother asserts that there was further violence by the father in April 2006. Over this period of time the mother obtained a protection order. In September 2006 orders were made by Monteith J restraining the father from removing the children from Australia and required him to lodge their passports at the Registry but with permission for the passports to be released to the father from time to time.
In December 2006 a Family Report was prepared by Ms R.
In January 2007 an appointment was made for the father to attend on a psychiatrist, Dr K, however the father left Australia. In February 2007 the father applied to adjourn the hearing as he wished to relocate to Germany.
The proceedings were transferred to the Federal Magistrates Court in April 2007 and in May 2007 a report was issued by Dr K.
The proceedings were listed for hearing on 6 July 2007.
It is of value to repeat what the Federal Magistrate said in his reasons delivered on 6 July 2007. He said:-
1.This matter was set down for an undefended hearing today. It was set down for an undefended hearing because the father in this case, while he has filed a Response for the final orders he seeks, has failed and refused to file any affidavit material which would support his case for final orders. I have noted and been taken in the file to several documents and I note that on 27 February 2007 the father filed what's called an Amended Response to an application and I think relevantly he asks as the main orders, the children live with him and that they be allowed to relocate to Germany.
2.I note that the husband asks that he be allowed to relocate. This Court has no authority or power to stop [the husband] from relocating. In any case the Court understands what he was asking in that draft order. I then note an Application in a Case dated 5 April asking that the order made by Monteith J on 5 March be discharged and that he be allowed to file and serve his trial affidavit no later than 4pm on 27 April 2007.
3.He also filed an affidavit with that application and on perusing that affidavit he says he will need eight weeks to complete his trial affidavit because all his files are in Germany and because he was
self-represented. I do not understand why the files in relation to the children are in Germany. The fact is the children are here. They've been here for some time and this part of the case has proceeded here so I do not accept that any of those files that he would need access to are in Germany.4.The real issue is that orders were made on 11 April 2007 whereby the husband was ordered to file and serve by 4pm on 27 April 2007 any Amended Response but more particularly, all his affidavits of
evidence-in-chief. That was made by Registrar Victoire. It appears to me that Registrar Victoire's order which would allow the father to serve his trial material by 4pm on 27 April is on all fours with the father's application that he be allowed to file his trial material no later than 4pm on 27 April 2007.5.The father comes to Court this morning. He has filed nothing except a Notice of Address for Service. He really asks me, I think, to delay this proceeding again. He tells me from the Bar table that he was not in an emotional state to file his material. He tells me that he was aware that he came to the conclusion that he was not in a state to conduct his case at some stage after 27 April. I questioned him further and he says, no not really until the last few days. I do not accept that at all.
6.The father, by training, I am told [practices a profession] although he does not practise in this country. I do not accept that legal processes of any country are really different and that is that a Court must have before it material in whatever form that Court desires it so that a Court can make a decision. I'm to make a decision in the best interests of the children. I do not believe that it is in the best interests of the children to prolong this case any further.
7.On that basis I do not accept an oral application from the Bar table that I should adjourn further. For completeness I will say that the father at no time until now told this Court or made application to this Court, even though he has been before the Court on a number of occasions, that he was in an emotional state which prevented him from conducting the case. Had that application come to the Court, while I could not prevent the outcome of a judicial decision on such an application, I could confidently say that the Court would have considered the circumstances.
8.I think the Court has extended to the father procedural fairness. I am not going to delay the case. The case is going to proceed now on an undefended basis. I accept the submission from counsel for the Independent Children's Lawyer that should the father wish to give evidence of his position at present, I should allow that and I will. I do warn the father that should he do that, he then opens himself up to cross-examination.
9.In this matter I am hearing what is called an undefended hearing. It became an undefended hearing despite the father having at times prior to today, taken part in the proceedings. Both parents seek that the children, [F] born […] October 1996, [V] born […] March 2000, [P] born […] July 2001, live with them.
The father’s application for adjournment was unsuccessful.
The learned Federal Magistrate made some further findings, they include:-[2]
·The father removed the children from Australia in or about January 2006 without the consent of the mother.
·The German judicial system held the father had removed the children from the mother and from Australia illegally.
·The father did strike the mother including striking her with his fist on her left ear and on her arm.
·The Court had grave concerns about the possibility of the father fleeing the country with the children despite the fact that he may not have access to passports of the children.
[2] At paragraphs 11, 12, 17 and 25 of the reasons dated 6 July 2007.
The Federal Magistrate made orders based on those findings of fact and as recommended by the Independent Children’s Lawyer.
The father is trained in a profession in Europe and has subsequently registered to practice with the professional society of New South Wales.
At the hearing on 6 July 2007 the learned Federal Magistrate made the following orders:-
a.The children live with the mother.
b.The mother have sole parental responsibility.
c.The children spend time with the father each alternate Thursday afternoon from 3.00pm until 5.00pm and each alternate Saturday from 9.00am until 5.00pm.
d.The children be placed on the Airport Watch List.
e.The father pay the mother’s costs.
On 10 July 2007 the father applied to have his passport returned and on 19 July 2007 the father moved to Germany and lived there until late October 2008. Over that period of about fifteen months the father did not spent time or communicated with the children.
The father has since commenced a relationship with Ms S and in October 2008 the father returned to Australia and after some difficulties his time with the children resumed.
In August 2009 the father arranged for a second passport to be issued in his sole name and without informing the mother.
In August 2009 the mother filed a contravention application whilst unrepresented and when the matter came before me in October 2009, having regard to the material contained in the affidavits, I ordered a Child Inclusive Mediation Session with Ms R.
In December 2009 a child responsive mediation feedback report was released.
Subsequent to that date the mother filed a notice of discontinuance in respect of the contravention application and it was dismissed by me on 17 May 2010.
In her report of December 2009 Ms R observed the following:
5.The children, particularly [V] and [P], expressed a desire to spend more time with [the father]. Of note, each child, including [F], articulate longing for their father to be more involved with them. They suggested [the father] play games: kick the soccer ball: spend time with them on the beach or the pool.
At that time the father was seeking an increase in time and the mother opposed that increase in time. The mother’s opposition was in terms of her great fear that the father would attempt to remove the children from her and from Australia.
There is some evidence that the mother has discussed the issues with the children and that this places pressure on F.
The father indicated to the Family Consultant that he was willing to give F a choice of spending time with him. However, later on he said that he proposed F either live with him or attend boarding school. The Family Consultant summarised the outcome in her report of which I have had regard, which includes her concerns that V and P’s relationship with their father may be undermined and that F needed to be relieved from his role as protector. The Family Consultant observed that F is strongly aligned with the mother.
Having regard to this report, the views F expressed in that report and in terms of F’s age and the time it will take to hear this matter, it is exceedingly unlikely that the father would succeed in his application in terms of F.
The father’s counsel informed me and I take it as a fact asserted by the father, that his visa position is such that he could be deported from Australia at any time. He is awaiting a determination of the Federal Immigration Minister as to whether he ought to be allowed to remain on humanitarian grounds and whether his application for a three month bridging visa is successful.
There is no doubt that the children have been embroiled in high conflict litigation for some time. In his affidavit in support of the application the father has set out a background of the relationship and court orders of which I have referred to earlier. The father says that he is committed to living in Australia although his visa situation, according to his affidavit, is tenuous.
The father was the defendant in proceedings where the mother sought a protection order in June 2009, that application was unsuccessful. The father does not want the mother’s present partner to be involved in the changeovers and it is clear that he is frustrating any efforts to do so, notwithstanding the finding of violence in the past.
The father asserts that in 2009 and 2008 there were difficulties in relation to parenting arrangements. He also claims that in January 2010 there were difficulties. The father also complains that the mother filed the contravention application which was dismissed.
He sets out a litany of complaints in respect of the mother’s behaviour particularly in 2008 and 2009. He offers no satisfactory explanation as to why he remained away from the children over about fifteen months from 2007 to 2008.
There is evidence before me that these children have been involved in significant conflict over many years since separation in late 2005/early 2006. There has been litigation in Australia and in Germany.
The father was not frank to the mother in terms of his new passport although there was some doubt as to whether he was obliged to provide the information to her.
Essentially what has changed since the orders of the learned Magistrate are that slightly more than three years have passed and the father absented himself from the children’s life for about one of the first of those years. When he returned to Australia it took a little time to put in place arrangements or to reconfirm the arrangements.
The children’s relationship with the father has diminished over the years. However, I do not accept the father’s assertion that it was solely as a consequence of the mother’s involvement. The fact that the father was away for so long had no small part to that. The question is whether this is a significant change apart from the change in years.
THE RELEVANT LEGAL PRINCIPLES
The principals in respect of Rice v Asplund (Supra) which are set out in Cook and Tracey [2008] FamCA 74 are:-[3]
[3]At paragraph 32.
39.… a statement of the relevant law is contained in the Full Court’s decision of F & C [2004] FamCA 568, where Kay, Warnick and O’Ryan JJ said:-
36. The Family Law Act 1975 provides in s65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).
40.The principles in relation to the protection of children from involvement in unnecessary litigation are identified by the Full Court in Rice v Asplund (supra) where the Court stated:-[4]
[4] At 78,905.
… The court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs.
…
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration.
…
41.This decision has been affirmed in a number of cases and the general principle is that a fresh application for parenting orders should only be entertained by the court where there is a significant or substantial change in circumstances. In D & Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
42.In King v Finneran (2001) FLC 93-079; Collier J, when determining an appeal from a Federal Magistrate, held that the amendments to the Family Law Act 1975 (Cth) in 1995 requiring a full inquiry of the matters set out in s 68F do not disturb the trial judge’s discretion to make a threshold determination whether to proceed to a full hearing, and stated at 88,367:-
41.The rule in Rice and Asplund is a rule evolved to protect children from the involvement in further unnecessary litigation.
…
49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, …
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation.
43.In CDJ v VAJ (1998) 197 CLR 172 the High Court determined an appeal concerning the circumstances in which a Court might admit further evidence in parenting cases, and I have had regard to those principles, which are outlined earlier in these reasons.
44.In Bolitho and Cohen (2005) FLC 93-224; Bryant CJ, May and Boland JJ agreed with and adopted the principles set out by Collier J in King and Finneran (supra) and held that the trial judge had appropriately applied the relevant principles by identifying the changes in circumstances, which included the children’s wishes, the children’s maturity to express such wishes, the children’s relationship with the mother and their poor school performance. There was no error of principle or basis for the submission that it was inappropriate for the trial judge to reconsider the parenting orders or that he failed to give sufficient reasons for his decision to do so.
45.I also particularly note the comments of Atobelli FM in P & S(No. 2) [2007] FMCAfam 1039; who said :-
5.… The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Rather that the rule being an exception to the paramountcy principle, it is in fact, a manifestation of it. The impact of conflict on children is well documented.
6.As the Full Court said in Rice v Asplund itself, “change is an ever present factor in human affairs.” Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to further litigation between their parents.
46.I have had regard to s 69ZN of the Act. Section 69ZN sets out principles for conducting child related proceedings. Those principles include a requirement that the Court is to consider the needs of the child concerned and the impact the sittings may have on the child in determining the conduct of the proceedings. The subsection provides:-
Section 69ZN(1) The court must give effect to the principles in this section:
a. in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
b. in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
…
Section 69ZN(3) Principle 1 The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
47.The principle set out in ss 69ZN(3) imposes an obligation on courts to look at the impact that the proceedings may have on a child. The principle must also apply to the serious question of rehearing children’s cases with the consequent impact on the child or children.
“All duck or no dinner”
The general approach in terms of applications of the rule in Rice v Asplund (supra) has been to dismiss the application. I have discussed elsewhere the impact of Division 12A in respect of Rice v Asplund applications. It seems to me that the approach of either all or nothing, that is, allowing a broad application or dismissing the application is perhaps too harsh in its application.
Division 12A sets out the principals in ss69ZN for conducting child related proceedings. I have alluded to those elsewhere in these reasons and I generally have regard to them.
Section 69ZQ sets out the Court’s general duties and gives effects to the principals provided in s69ZN.
These include:-
S69ZQ1(a) The court must decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily;
I see no reason why the Court cannot apply the rule in Rice v Asplund (supra) in relation to parts of an application and allow other parts of the application to be determined.
DISCUSSION
The evidence of the mother and her partner is such that if accepted the father could be characterised as a narcissistic, obsessed and dangerous individual who presents a grave risk to the children and should spend no more time with them.
The father’s affidavit material and that of his partner and Mr Y would, if accepted, paint the mother as a vindictive manipulative person who has undermined the father’s relationship with the children and has taken whatever steps she can to prevent the children developing a meaningful relationship with the father.
This issue arises subsequent to the determination of the Federal Magistrate in July 2007.
It is of value to carefully look at the report of Ms R in terms of the children. Ms R observes that the children, particularly V and P wish to spend more time with the father and long for their father to be more involved with them. The concerns of Ms R relate to the time and to the quality of the time that is spent.
Ms R suggested that the father would benefit from partaking in counselling to gain strategies on how to parent an adolescent with ADD. There is no evidence that the father has adopted that course.
If this mater is to be heard, the soonest possible final hearing date would be September/October 2011. The father has, until recently, expressed no urgency in relation to the hearing of this matter. He, to all intents and purposes, abandoned the children for a period of over one year and after receiving Ms R’s report did not commence proceedings for another six or seven months.
On the material before me there seems to be no cogent reason to expedite these proceedings over other matters in the queue in front of it. Accordingly, the proceedings would normally be heard in the normal course of matters (in terms of the docket Judges in Cairns that would mean September/October 2011 at the earliest).
I made available to the parties my reasons in Wickham v Jones [2010] FamCA 837 including the reference, in those reasons, to the research of McIntosh, Smyth Kalaher, Wells and Longey in relation to “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children”.[5] Counsel for the mother addressed me in relation to that aspect of the reasons.
[5] May 2010.
I intend to deal with the various aspects of the father’s application individually. The first part of the father’s application is that there be equal shared parental responsibility. I analysed what has changed since the orders of the learned Federal Magistrate. An analysis, even on a best case scenario, reveals that the father was absent from the children’s lives for over twelve months and when he returned (even on his evidence) his reconnection with the children lacked some degree of sensitivity. The father’s relationship with F has deteriorated and there has been high level of conflict between the parties over late 2008, 2009 and 2010.
The father has not provided evidence of following the recommendations of Ms R. His application for equal shared parental responsibility, even on the father’s evidence, is unlikely to succeed.
There is nothing in the material to support a change and it would simply prolong the proceedings and involve significant additional worry for the mother and perhaps concern for the children.
The father in his application also sought to spend equal time with all of the children, including F. When these proceedings are heard, the soonest being in September/October 2011 or possibly February or May 2012 F will be aged fifteen approaching sixteen. His views will have a significant impact in these proceedings and, having regard to the father’s evidence and that of the Family Consultant to date, it is unlikely that the father would succeed in any application. It would simply add to the burden that the child is already carrying.
The only aspect which could reasonably be argued is whether the father should adopt what he indicated to the Family Consultant, that was to accept the views of that child.
Accordingly, I do not intend to permit the father to reargue the issue whether F should spend equal time with him or more time with him. The only aspect of that case which I would allow to be argued is whether F should be given permission to make up his own mind as to what time he should spend or how he should communicate (if at all) with the father.
In respect of V and P I have had regard to the, as yet untested evidence, of the Family Consultant and that of the father. There is real concern that these children need to spend more time with the father. However, there is nothing in the father’s material from July 2007 which would indicate or support a significant change of the arrangements such as is now proposed by the father, namely, equal time. It is quite the contrary.
There may be, on the best analysis of the father’s evidence, some reason to convert the time provided by the Federal Magistrate in his July 2007 orders to longer weekend time during school term. Whether that should occur at all or whether it should be from after school Friday until the commencement of school Monday or something slightly less is a matter for final evidence and determination. However, I would not permit the issue to be ventilated further than that level.
There may also be an issue with regard to the time the children spend with the father during school holiday and the issue of overnight time bearing in mind the mother’s concerns with regard to the father’s bona fides.
I intend to allow that limited aspect of parenting to be argued.
There is also the question of the father’s passport. The father has obtained a new passport and did so without the mother’s knowledge or consent. There is an issue, having regard to the various orders, as to whether that was in breach of orders or was something which the father was entitled to do. Even at the best it is insensitive bearing in mind the mother’s concerns and fears about the father removing the children from the Commonwealth of Australia.
I will put in place an interim order now requiring the father’s passport to remain with the Court and I will determine at the final hearing whether that passport ought to be returned to him.
In her material the mother complains that the Family Consultant adopted an inappropriate approach in not interviewing her partner. This is a case where, on the limited issues which will be determined, there will need to be an updated Family Report. I will permit the mother to argue whether there ought to be a different Family Consultant appointed in this matter or whether Ms R’s appointment should continue. I will allocate a date for that purpose.
The father wishes to argue interim orders with regard to additional time between the children and him, before me today. Having regard to a number of factors, firstly the time that the father has taken to review the orders of the Federal Magistrate, returning to Germany and living away from the children for over twelve months and awaiting six or seven months before making this application I can see no urgency.
Furthermore, if the evidence of the mother is accepted and her concerns about the children’s risk in the father’s care are established at the final hearing, it would be unlikely that additional time would be given. Accordingly I decline to hear the interim application at this time.
I will however list the matter for a final hearing in September/October 2011 (this will of course be subject to any other more urgent matters which may arise at that time) and set in train the process to enable that to happen.
One of the issues will be the appointment of an Independent Children’s Lawyer. The Court takes judicial notice that such lawyer is funded by Legal Aid and that the Legal Aid Commission normally require the parties to contribute to the cost of that lawyer. It is clear on the material before me that the mother has expended a huge amount of her financial resources on this litigation.
This litigation is in part brought about by the father being focused on his own needs in 2007 and 2008 rather than the needs of the children. It would seem, at some levels, unfair and unjust that the mother is required to contribute towards the costs of the Independent Children’s Lawyer. However, there may be other factors which I have not considered.
Accordingly if there is to be a requirement that the mother contribute to the cost of that lawyer it would need to be an application made to me either prior to the hearing or at the hearing. Such application can be made by the Independent Children’s Lawyer.
Once I determine the question of who should prepare a Family Report I shall order a Family Report to be prepared and limited to the issues which I propose to determine.
In terms of readying the matter for trial I will be directing that the father file his affidavits by 30 June 2011. I will be imposing draconian orders in this respect. The father has in the past shown some disregard for directions. In addition the mother is entitled to know what the father’s evidence is so that she can focus her material in reply.
I suspect both parties will rely on the affidavits they have filed up to date (and I permit them to do so) and a further affidavit should be filed by the father at that time. I will also require the father to pay by that time or have remitted by that time the hearing fees.
In terms of remission if the father applies to remit the fee he will still need to pay the small amount. If the father chooses not to file an affidavit or not to pay the filing fee or pay the balance of the filing fee if part is remitted it would seem to me that he is not serious about his application and it would be summarily dismissed.
The mother would then file her material in reply by 29 July 2011 and the appointments for the Family Report would need to be organised for the first week or two of August with the report available in September for the September/October 2011 hearing.
This way the genuine interest of the children having a relationship with the father can be addressed. If there are issues about the father’s immigration status that can be resolved or at least be clarified in that time and the hearing can be restricted to one or perhaps two days.
I would expect the expert to give evidence first and the parties to be cross-examined in relation to their material following that expert evidence. The parties would be limited to providing evidence of themselves, their respective partners and in the case of the father and Mr Y. Should the parties request further evidence they can make applications in due course.
I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 November 2010.
Associate:
Date: 5 November 2010
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