Casboult and Close (No.4)

[2013] FCCA 943

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASBOULT & CLOSE (No.4) [2013] FCCA 943

Catchwords:
FAMILY LAW – Interim arrangements for children aged 14 & 11 to spend time with their father – high conflict – allegations of family violence – previously final orders made in May 2011 – children have attended upon family consultant in child inclusive mediation – views of children – best interests.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS CASBOULT

Respondent: MR CLOSE

File Number: ADC 2567 of 2010

Judgment of: Judge Brown

Hearing date: 6 May 2013

Date of Last Submission: 6 May 2013

Delivered at: Adelaide

Delivered on: 6 May 2013

REPRESENTATION

Counsel for the Applicant: Mr McGinn

Solicitors for the Applicant: Nelson & Co

Counsel for the Respondent: Mr Reynolds

Solicitors for the Respondent: SRG Lawyers

ORDERS

1. Pursuant to section 106A the Registrar of the court at Adelaide is directed to sign all necessary documents and instruments arising in respect of the sale and marketing of the property known as and located at Property D1, in the State of South Australia in lieu of the husband.

2. Within fourteen (14) days of the date of these orders the husband vacate each of the properties known as and located at Property D1 and Property D2 and provide all keys in respect of such premises to the agent appointed for the sale, Mr R. 

3. If the husband fails to comply with order 2 hereof an enforcement warrant issue pursuant to rule 25B.32 of the Federal Circuit Court Rules.

4. The enforcement officer appointed pursuant to the aforementioned enforcement warrant is directed to remove the husband Mr Close without further reference to him. 

5. The final hearing of this matter is confirmed. 

6. On or before 9 October 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

7. The applicant pay such daily hearing fee as required pursuant to the Federal Circuit Regulations 2000.

8. The applicant file and serve all affidavit evidence she proposes to rely on at trial together with an updated statement of her financial circumstances on or before 9 October 2013.

9. The respondent file and serve all affidavit evidence he proposes to rely on at trial together with an updated statement of her financial circumstances on or before 23 October 2013.

IT IS NOTED that publication of this judgment under the pseudonym Casboult & Close (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 2567 of 2010

MS CASBOULT

Applicant

And

MR CLOSE

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally immediately following the interim hearing.  As every decision involved the parties concerned has been highly controversial between them, it is appropriate that the reasons be transcribed.

2. This morning, I have to deal with an application which is brought by Ms Casboult.  The respondent to the application is Mr Close.  The parties are the parents of three children:  X, who was born on (omitted) 1995; Y, who was born on (omitted) 1999; and Z, born (omitted) 2002. 

3. These interim proceedings concern primarily the two younger children, Y and Z.  In her amended application, filed 26 April 2013, Ms Casboult, to whom I will refer as the mother, seeks the following interim orders:

   i)firstly that orders which relate to the parties children, which were made in this court on 11 May 2011 be suspended;

   ii)secondly that a family assessment report be prepared as soon as is practicable, which should be directed towards what time, if any, Y and Z should spend with their father;

   iii)thirdly that the father be restrained, and an injunction issued restraining him from attending at or near the children’s school, or where the children live.

4. On the mother’s application, the matter was listed urgently on 2 May 2013.  On that date, the respondent, Mr Close, to whom I will refer as the father, had not had a chance to formally respond to the matters raised by the mother. 

5. On that basis, the proceedings were adjourned until today, and in the meantime, it was directed that the parties and Y and Z should attend upon a family consultant, Ms D, for a child-inclusive conference.  I also suspended the orders pursuant to which the children spent time with their father, until that conference took place.

6. The conference took place on 3 May.  I have been provided with a memorandum from Ms D, the court counsellor who convened the conference, as to what took place.  I will return to that memorandum shortly.  But firstly, it is necessary to outline the relevant matters which bring the parties to the current point.

7. The parties have a lengthy and complicated history of proceedings in this court.  It is, I think, common ground that they married in (omitted) 1993.  When they separated is controversial.  It is the mother’s position that the parties have been separated for pretty much close to a decade.  The father has a different view.  He asserts that it is a much shorter period of time.

8. At any event, it is also common ground that the parties are involved with two properties, which abut one another in (omitted).  They are located at Property D1 and D2 respectively.  

9. It is also clear that the mother, X, Y and Z, have not lived in either of the Property D properties for a significant period of time.  It is the mother’s position that it is since May of 2010, when she and the children moved out of Property D2, and moved to rental accommodation in (omitted). 

10. It is her position, as I say, that she and the father had been separated from one another for many years before that time, although they continued to be, in effect, neighbours living next door to one another.  She at Property D2 and he at Property D1.  The father does not agree.  He asserts that the parties and the children were a complete family up until 2010.

11. Neither of the parties is in a strong financial position.  Mr Close has been in receipt of a disability support pension for many years because of cardiac problems.  The mother has worked as a (omitted) at a (omitted), but that has only been on a part-time basis.   She also has had issues to do with her health.

12. During the period from 2004 onwards, whilst the parties were living next door to one another, it seems to be the case that each has received social security payments.  Those payments have been issued by Centrelink on the basis that there was no marital relationship or marital-type relationship between the parties. 

13. As a result of information, which it would seem has come from Mr Close, the authorities at Centrelink have formed the view that the parties were married for many years, up until 2010.  Accordingly, both Mr Close and Ms Casboult have been assessed by Centrelink as having received social security payments to which they were not entitled.  This has caused a significant level of controversy between the parties.  It has also intensified the financial pressures on the parties, as they have been required to repay Centrelink in respect of this overpayment.

14. Regrettably, this is not a case which is without other areas of significant controversy.  It is the mother’s position that she was forced to vacate Property D2 because of the husband’s poor behaviour and abusive conduct towards her.  It is also her case that Mr Close was growing marijuana through a hydroponic system in a shed at one of the properties, unbeknownst to her. 

15. Against this difficult background, the mother commenced proceedings in this court on 8 July 2010.  She sought orders in respect of both the children concerned and in respect of the division of marital property. 

16. It has long been her position that it is unavoidable that both Property D1 and D2 should be sold.  Mr Close has resisted this application for reasons, which I have explained at some length in other judgments, which I have published.  He wishes to be able to retain at least one of the properties and live in it.  The mother asserts that the properties are run down and neglected and will achieve a better price if sold together as a development opportunity.

17. The proceedings between the parties have been much delayed.  In September of last year, a trial of the matters was aborted because of the difficulties which had recently arisen regarding Centrelink.  In November, the mother brought an application seeking the sale of both Property D1 and D2.  This application was deferred on the basis that an urgent final hearing could be accommodated in January of this year.  That hearing did not go ahead because the father was unwell. 

18. In those circumstances, the mother re-agitated her application for the sale of Property D1 and D2.  It being her case that the parties were likely to receive a premium if the properties could be sold together as a site open to development. 

19. Property D2 is registered in the mother’s name alone.  Property D1 is registered in the father’s name.  After the mother left Property D2, it seems to be the position that the father moved into Property D2 and left Property D1 vacant. 

20. In the earlier proceedings, the father has conceded that the premises at Property D1 are unliveable.  It is the mother’s position that she has recently inspected the property at Property D1, and has found that the floorboards, at least in a portion of it, have been removed.  She believes that there is evidence that indicates it has been used to grow marijuana.  She is generally concerned that it is not suitable for any person to live in, certainly not two children of the ages of Y and Z.

21. Ultimately, on 15 February 2013, I determined that it was inevitable that the two properties needed to be sold.  I made orders to that effect, and published lengthy reasons for judgment in support of that decision.  The orders I made were subject to appeal by Mr Close.  The appeal, as I understand it, has not as yet been determined by the Full Court, nor has the Full Court allocated a date for the disposal of the appeal. 

22. The father sought a rehearing in respect of the orders that were made in February, and a stay to be made of the operation of those orders.  I dealt with that application in March of 2013, and again, published reasons in respect of it.  The father was unsuccessful in his application for a stay and a rehearing. 

23. One of the aspects underpinning his application for a stay and a rehearing was that he asserted that he would buy out the mother’s interests in both properties through funds which would be released by his sister, purchasing one of the properties entirely, and his partner purchasing a significant interest in the other property.  I formed the view that it was open to the parties to compromise the matter, if that is what they decided to do, but I was not minded to grant the stay. 

24. The matter returned to court on the mother’s application in early April of 2013.  It was her position that the proposed settlement of the proceedings had not eventuated.  In those circumstances, she sought that an enforcement officer be appointed by the court to, in effect, evict the father from the properties in (omitted) so they could be sold. 

25. That matter came on for argument on the 22nd of April 2013.  Clearly, given the background, as I have briefly outlined it, it was a matter of significant controversy from both parties’ points of view.  As I say, this is not a case which is without its controversy.

26. I was intending to deliver a judgment in respect of the enforcement application shortly, but in the meantime the mother filed her application in respect of the children concerned.  I was concerned that it may be imprudent of me to deal with the eviction proceedings, whilst the children’s matters were outstanding, because of the potential for the children to be exposed to significant levels of conflict between their parents, which were likely to be exacerbated by the outcome of the enforcement proceedings. 

27. The orders which deal with the children and which the mother now seeks be suspended were made on the 11th of May 2011.  They were made by her Honour, Federal Magistrate Sexton, as she then was, and provide for the two boys to have regular time with their father including on weekends overnight and for block periods of time during school holidays. 

28. The orders in respect of X to spend time with her father were subject to X’s wishes, it being the position, at least in 2011, that she was not willing to spend time with her father regularly. 

29. It is the mother’s position, as outlined in her affidavit of the 26th of April 2013, that Y has reported to her that the father has indicated in January of 2013 that he is going to shoot X in the head, and that she, that is, the mother, needs a bullet in the brain.  From the mother’s perspective, Y was extremely distressed at this, as was she herself. 

30. She is also concerned about comments which have been posted on Mr Close's Facebook page about her which indicate his disgust that she has sought to sell the (omitted) properties, and from his perception has taken advantage of his cardiac illness.  He also asserts that she is manipulating the children and has a mental illness. 

31. The mother has had cause to complain to the police and is concerned that she is being surveilled by a person in a black car who has been parked outside her home.  More recently, again, Y has received a message through the internet which describes a person who can only be Ms Casboult in unflattering and insulting terms and suggests to Y that the mother is likely to be incarcerated because of issues that relate to social security. 

32. In previous judgments, I have referred to the stresses these proceedings have applied to the mother.  In her recent affidavit she deposes that she has lost 24 kilos in weight.  She continues to consult her general medical practitioner and has trouble sleeping.  She is vomiting with the stress of these proceedings. 

33. More recently, again the father has indicated that he concedes that Property D2 cannot be retained by either him or the mother.  It is subject to a mortgage which is in arrears with the (omitted Bank).  On that basis it has been his most recent position that he would move into Property D1. 

34. As I have indicated today, in these brief orally delivered reasons for judgment, it has been the father’s position that Property D1 is uninhabitable.  The mother is of the same view, and she is concerned that it would be unsafe for the children to spend time with their father at Property D1.  She has similar concerns in respect of Property D2. 

35. For the reasons which I am about to publish, I have come to the view that the mother’s application for an enforcement warrant should be granted, and I will make orders to this effect which will require the husband to vacate both Property D1 and D2 within 14 days, and if he fails to comply with such an order that there be an enforcement officer appointed and a warrant for his ejectment issued. 

36. I will also make an order pursuant to section 106 of the Family Law Act that the registrar of the Court be appointed to sign all necessary documents to sale and market Property D1.

37. Having made that decision, clearly, that will again ratchet up the hostility between the parties.  Regardless of the rights and wrongs behind the various factors which have created this deplorable situation of hostility, it has got nothing to do with the two children concerned. 

38. The father has not as yet responded to the mother’s allegations regarding his threats against her and the implications for the two children concerned.  Similarly, he has not recently deposed as to what are the material circumstances of both Property D1 and D2, or, indeed, where he will live, when the Court gives effect to the orders that I have made. 

39. It is against this very difficult background that what Family Consultant Ms D has reported assumes great significance.  In the report, under the heading, Family Safety Factors, Ms Casboult describes to Ms D what she says is abusive and controlling behaviour on Mr Close’s part directed towards her and X. 

40. Mr Close denies these and says that it is in fact Ms Casboult who has made death threats against him which involve the (omitted).  Ms D formed the impression that both parents have a proclivity to strong reaction, which perhaps is congruent with the description of the parties which I have briefly delivered. 

41. Significantly, Ms D was able to speak to both Y and Z.  Y has recently turned 14.  Z is 13 years of age.  Y is described in the report as being quietly spoken, a guarded young person who engaged minimally but cooperatively. 

42. Ms D’s view is that he was anxious, particularly when he considered possible contact with his father.  He reported that he likes being at his mother’s house and that his mother is calm and he feels better there.  He said his mother does not talk about his father unless he has sent an abusive message.  He was positive about his mother.

43. This was in contrast to what he said about his father.  Y said his father would talk in a really bad way about his mother.  Y thought that his father was angry and really hated his mother.  Y said that his father had hit him a lot.  He tried to give an example of being hit on the arm by his father, but could not remember the full details. 

44. Y had other complaints about his father’s care of him.  Y was concerned about the threats which had been relayed in his presence, particularly that there was a possibility that Ms Casboult may have to go to prison.  In Ms D’s view, he is clearly very resistant to spending time with his father. 

45. Z presented as less burdened, but was unable to recall any good memories of his father.  He made some complaints that he had been physically disciplined by his father with a belt.  He was positive about his mother. 

46. So in terms of the further future directions of the matter, Ms D was of the view that it was unlikely to be viable to compel the two boys to spend time with their father. 

47. In this, as in all matters to do with children, I have to apply the provisions which are contained in Part VII of the Family Law Act.  I must bear in mind that in deciding to make any particular parenting order in respect of a child, the best interests of the child concerned are the paramount or most important consideration. 

48. How a Court determines what is in a child’s best interest is set out in section 60CC of the Act. I must consider a long list of considerations set out in the section, which are relevant to a child’s best interest. There are two categories of considerations, primary considerations and additional considerations.

49. There are two primary considerations.  Firstly, I must consider the benefit to the child or children concerned of having a meaningful relationship with both of their parents.  Secondly, I have to consider the need to protect the children concerned from the physical and psychological consequences or harm arising as a result of those children being exposed to abuse, neglect or family violence.  Pursuant to recent amendments to the Act, I must give pre-eminence to protective concerns. 

50. The additional considerations are more numerous.  I must consider any views which have been expressed by the children, bearing in mind the maturity and level of understanding of the children concerned.  I must also consider the nature of the relationships the child has with each of his or her parents and other people who are significant to him or her. 

51. In this case, clearly, both Y and Z have a significant relationship with their father.  They know him very well, as they have spent time with him regularly over the past few years. 

52. It also seems to me that I must give significant weight to the views Y and Z have apparently expressed to Ms D.  They are mature children, who are well aware of the significant and long running conflict between their parents.

53. In the earlier proceedings, which gave rise to the orders of the 11th of May 2011, a family report was prepared, which indicated that the children, at that time, were burdened by the significant and endemic conflict between their parents. 

1. It was largely, I think, as a result of the recommendations made in the report that Y and Z were ordered, as a result of the consensual agreement of the parties themselves, to spend substantively significant time with their father. 

2. As I have said already, X was in a different position.  Her views were that she did not want to see her father.  Clearly, at the time, she was a more mature child than either Y or Z.

3. In this case, in my view, the fundamental obligation of the Court is to protect Y and Z from coming to psychological harm as a result of being exposed to family violence and indeed neglect. 

4. On the basis of the evidence available to me, I am not persuaded that the environment of both Property D1 and D2 is a suitable one for these two children to stay in overnight.  The mother has given evidence about this issue and the father has previously conceded the difficulties.

5. But more significant, in this case, are the threats and allegations of violence, which have been made in this matter.  I think I can have reasonable grounds to believe, at this stage, that the children have been exposed to family violence. 

6. Family violence is defined in the Act in section 4AB.  I will just turn up the definition.  It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

7. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. 

8. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.  Again, the legislature has provided examples which may fit within this definition. 

9. The messages on Facebook, in my view, are coercive and controlling and would put a person into fear or apprehension.  I am satisfied that the children have been exposed to those messages.

10. I am also satisfied that these two children are expressing a view not to spend time with their father.  At this stage, I do not think it would be in their best interests for the court to disregard their views.

11. So for those reasons, it is my view that it is likely to be in the best interest of the two children concerned that the interim orders that were made on 2 May 2013 should continue until further or other order. 

12. So for those reasons I will publish the reasons for judgment in respect of the mother’s application for an enforcement officer.  In respect of the mother’s amended application for children’s orders, I will direct that the father file a response in an affidavit in support within 28 days of today’s date. 

13. I will fix the matter for interim hearing at 2.15pm on the 14^th of June 2013. I will direct that a copy of the orders made today and the reasons for judgment published this day be personally served on the respondent husband.

14. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:  6 May 2013