Classen and Kempers

[2019] FCCA 3134

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLASSEN & KEMPERS [2019] FCCA 3134

Catchwords:
FAMILY LAW – Interim parenting – spend time or change of residence – where children have had no spend time with their father since November 2018 – where informal arrangements between the parties were successful for some years but have since ceased by the mother – where mother has failed to facilitate spend time arrangements between the father and children – best interests of the child – where mother allegedly suffers from bipolar II disorder – allegations of family violence – where the father has re-partnered – where parties are expected to explore mediation – no sufficient risk of harm to the children – applicable principles – orders made.

Legislation:

Family Law Act 1975 (Cth), s.65D

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662
Goode v Goode (2006) 36 Fam LR 422

Applicant: MR CLASSEN

Respondent: MS KEMPERS

File Number: MLC 3777 of 2014

Judgment of: Judge A Kelly

Hearing date: 22 October 2019

Date of Last Submission: 22 October 2019

Delivered at: Melbourne

Delivered on: 22 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Wilson

Solicitors for the Applicant: Harwood Andrews

Duty Solicitor for the Respondent: Ms Di Blasi

THE COURT ORDERS THAT

Parenting

1. Pursuant to s.68L(2) of the Family Law Act1975 (Cth) the children X born … 2007 and Y born … 2009 (Children) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at

   (

   and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing.

2. Until further order, the Children spend time with the father as follows: 

(a)       from Thursday, 24 October 2019, after school, until the commencement of school on Monday, 29 October 2019;

(b)       from Wednesday, 6 November 2019, after school, until the commencement of school on Monday, 11 November 2019;

(c)       from Wednesday, 27 November 2019, after school, until the commencement of school on Monday, 2 December 2019;

(d)       from Wednesday, 18 December 2019, after school, until 9:00am on Monday, 23 December 2019;

(e)       from 3:30pm Wednesday, 8 January 2020, until 9:00am Monday, 13 January 2020;

(f)        from 3:30pm Wednesday, 29 January 2020, until the commencement of school on Monday, 3 February 2020;

(g)       from Wednesday, 19 February 2020, after school, to the commencement of school on Monday, 24 February 2020; and

(h)       thereafter each third week from after school or 3:30pm on Wednesday, until the commencement of school the following Monday (or 9:00am if not a school day) commencing Wednesday, 18 March 2020 and other times as agreed in writing.

1. For the purposes of the Children spending time with the father:

   (a)the father collect the Children from and return them to their school whenever time commences or concludes on school days; and

   (b)the parties attend McDonald’s Restaurant at Suburb E for the changeovers of the Children whenever time commences or concludes on a non-school day.

2. Until further order each party by themselves, their servants or agents be restrained from:

   (a)discussing these proceedings with the Children; and

   (b)denigrating the other or the father’s partner in the presence or hearing of the Children.

3. The parties do all things reasonably required to enable:

   (a)an assessment and report (Family Report) to be completed by Ms A as to the best interests of the Children as soon as practicable including but not limited to:

(i)     attending upon Ms A with the children on 26 February 2020 and such other times as Ms A may require;

(ii)    authorising Ms A to obtain such information as she may require and authorising other persons to provide that information to Ms A, including but not limited to the psychiatric assessments referred to in paragraph 5(b) of this Order;

(b)psychiatric assessments of each of the parties to be completed by Dr B (psychiatric assessments) as soon as practicable including but not limited to:

(i)        attending upon Dr B on 28 January 2020 and such other times as Dr B may require;

(ii)      authorising Dr B to obtain such information as he may require and authorising other persons to provide that information to Dr B, including but not limited to reports and records of mental health treatment they have received.

1. Each party be responsible for payment of one-half of the costs of the Family Report and the psychiatric assessments subject to any further order of the court.

2. Pursuant of section 13C of the Family Law Act 1975 (Cth) the parties:

   (a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (Program) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;

   (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

   (c)pay and otherwise be responsible for all costs associated with the Program; and

   (d)provide an appropriate certificate of completion of the Program to the other parties’ lawyers and their lawyers.

Hearing

1. The matter be fixed for Final Hearing at 10.00am on 10 May 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 days.

2. The following directions are made respecting discovery and use of documents at trial:

   (a)no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);

   (b)no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;

   (c)no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;

   (d)save with leave of the Court, no document identified pursuant to paragraph 9(a) of this Order may be relied upon or adduced in evidence at trial.

3. Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:

   (a)the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;

   (b)the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.

4. Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the court.

5. The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 10 to 11 of this order.

6. Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of the significant factual issues requiring determination;

   (d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (s 60CC factors);

   (e)a list of contentions relevant to the operation of s 65DAA;

   (f)a list of any other contentions relevant to the decision; and

   (g)the actual orders sought.

7. In default of compliance with the obligations in any paragraph of this Order, either party may apply to the Chambers of Judge A Kelly for the matter to be listed for mention.

AND THE COURT NOTES THAT:

A.The parties are encouraged, following the receipt of the reports from Ms A and Dr B, to explore mediation with F Mediation: C Street, Suburb D. 

B.Pursuant to ss 65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations this order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in Annexure A and these particulars are included in these orders.

C.If in any proceedings there are allegations of family violence and the provisions of s 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Classen & Kempers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3777 of 2014

MR CLASSEN

Applicant

And

MS KEMPERS

Respondent

Ex tempore REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for interim parenting orders which arise in circumstances where the two children of the marriage, X, born … 2007, and Y, born … 2009 (Children), have had no spend time with their father since November 2018.  The parties were married in … 2005 in Tasmania.  According to the marriage certificate, the usual occupation of the father was a professional, and that of the mother was a professional.

2. Following the breakdown of the parties’ relationship, the mother commenced proceedings by an initiating application on 2 May 2014 seeking an adjustment of property interests.  The matter was the subject of a series of interlocutory orders and final property orders were made by consent on 19 August 2014. 

3. In January 2015, the parties applied for, and obtained, a divorce.

4. The Children have spent time with their father between 2014 and 2018, largely in accordance with his rotating roster as a professional.  In practical effect, this means that the Children have spent about five days in every three weeks with their father. 

5. For the purposes of the present application, the circumstance that the Children have spent about five days in every three weeks with their father is to be considered in the context of the parties’ notices of risk,

6. On the father’s notice of risk, respondent mother suffers a bipolar II disorder, has failed to encourage and facilitate the father’s relationship with the Children, and has not permitted them to spend time with him since November 2018.  It is further contended by the father, that the mother has denigrated the Children and that they are suffering and at risk of emotional and psychological harm. 

7. Contrastingly, the notice of risk filed by the mother is that the Children have been present when the applicant has punched a hole in a door that narrowly missed her head; he has kicked a plastic trolley; he has prevented access to the mother, causing distress to the Children; he has yelled at them, causing them to be intimidated.  The mother’s contention, by her notice of risk, is that, “He is intimidatory, physically, manipulative, invalidates their feelings and denigrates me as their mother . . .” 

8. I have considered the contents of the mother’s notice of risk in detail and note that in section 3A of the notice she has provided a litany of allegations tracing back to 2004.  As was pointed out in submissions in the course of the interim application, it is perhaps instructive that despite the nature and the scale of those allegations, the mother did not see it as inappropriate for the Children to spend time with their father in accordance with the parties’ informal arrangement between 2014 and 2018 for periods of about five days in every three weeks.

9. It is evident on the parties’ affidavits – each of which I have examined – that their informal parenting arrangements had operated with relative success for some years.  On the father’s case, the present impasse, or the catalyst for it, might appropriately be identified as the mother’s resentment of the fact that the applicant has re‑partnered.

10. Whether or not that be so, the critical issue in the present case concerns what orders are in the best interests of the Children. 

11. Although he made a number of attempts to resolve this matter without recourse to litigation, the father ultimately initiated the present proceeding on 26 August 2019.  The proliferation of steps disclosed by the court file since that date is alarming. 

12. For present purposes, I note that the father has now determined that unless the matter be resolved by appropriate court resolution, that there should now be a change of residence whereby the Children live with him.  He, like the mother, seeks orders that the question of spend time with the other parent be reserved.  Following the parties’ filing of notices of risk, a response from the Department of Health and Human Services (DHHS), dated 17 October 2019, identifies that there is no child protection history recorded in this matter.  The first involvement of the Department occurred in October 2019, which observes that, “It is understood there are Family Law Court matters pending.” 

13. The Department took the commendable step of investigating the matter with the Children’s school.  The school identified to the Department that it had no concerns for the Children in the care of, “either parent”:

    …with nothing to indicate that the children are not well cared for, with all well-being needs adequately met.

14. Whilst noting that the Children has recently demonstrated some social and emotional difficulties, they had been assessed as against their peer and social relations, and were considered by the Department to be “age appropriate in regard to their social development.”  Following consultation with the departmental intake team manager, the assessment made by DHHS was that, having regard to the follow up with the Children’s school, no sufficient concern was identified for the Children’s well-being in the care of either parent.  DHHS considered that it had no relevant requirement for involvement at this stage.

15. I have had regard to each of the parties’ affidavits sworn by the father on 22 August 2019 and 21 October 2019 respectively, the mother’s affidavit sworn 30 September 2019, and the partner of the father, whose affidavit was sworn on 6 September 2019. 

16. The question of Children is addressed by Part VII of the Family Law Act 1975 (Cth). Section 65D of the Act provides that the court may make such parenting order as it thinks proper. The scope and operation of that provision was considered by the High Court of Australia in Bondelmonte & Bondelmonte[1]. The Court observed that the power conferred by section 65D involves value judgments in respect of which there may well be room for reasonable differences of opinion.

    [1] (2017) 259 CLR 662, [8].

17. The objects of Part VII are well-known and they are certainly well‑known by the parties’ legal representatives in this proceeding.  The court is to have regard to the best interests of the children by protecting them from physical or psychological harm, from being subjected to or exposed to abuse, neglect and family violence. 

18. The principles underlying those objects recognise the manifold rights of children with respect to both of their parents: s 60B(2).  The court is required to have regard to the children having the benefit of a meaningful relationship with both of their parents and of the need to protect them, as I have said, from physical or psychological harm, or from being subjected to, or exposed to, abuse, neglect and family violence.  The principles as respect interim orders are equally well settled in Goode & Goode[2].  Again, the court is required to have regard to the best interests of the children in deciding interim family orders. 

    [2] (2006) 36 Fam LR 422.

19. The court must recognise that the Act evinces a legislative intention in favour of the substantial involvement of both parents in their children’s lives, and for them to have parental responsibility and for the children to spend time with each of them, subject to the need to protect the children from abuse, harm or violence.

20. The critical issue in the present case is whether there should be a resumption of spend time with the father.  To the extent that there is agreement, the parties have each submitted a number of proposed orders which relevantly address the very real importance that there should, in the very near future, be a series of consultations for the purpose of a preparation of a family report and a psychiatric report by Ms A and Dr B respectively.

21. Whilst the parties were in disagreement as to the cost of those reports, I have determined that they should, in the first instance, bear the costs of each such report equally.  I am also, at least to some extent, encouraged by the fact that the parties are each now engaged in the need to properly explore mediation, which they should do as soon as they have had adequate opportunity to consider the reports of Ms A and Dr B.

22. By way of notation to the orders to be made this day, I am requesting that those experts give serious consideration to the desirability of the parties, together with the Children, undertaking family therapy.  It is beyond the scope of the present judgment to explore whether that should be reportable, or non-reportable, but it is certainly something that I would hope those experts would address. 

23. In my view, there is no merit in the mother’s submission that the proper basis on which there should be a resumption of spent time with the father should be progressively undertaken by means firstly of supervision, (to be undertaken by the mother’s parents and only then by daytime spend time).  The present impasse bears all the hallmarks of difficulties which arise as between the parents, not a parent and a child or the children.

24. Whilst the material presently involves many disputed questions of fact, I am not persuaded of the merit of the submission that these Children do not wish to spend time with their father.  Whether that is so is a matter that can be more fully explored by the experts whom the parties have agreed will be involved in the matter, and indeed, if experience be any guide, those experts will be interested to know from the Children themselves how their relations with their father and their mother have progressed since today’s hearing.

1. I am persuaded that there is no sufficient risk as would militate against the making of orders that are sought by the father in this case and to the contrary, I consider that it is very much in their best interests that they be able to resume that relationship without delay.  I am most concerned for the parties to recognise the scale of the damage which these Children face in the immediate future if this present dispute between them is not resolved quickly.

2. The true victims of the dispute in a case of this kind will be the Children, who still have another several years to go before they pass from adolescence to adulthood.  When at age 18 and they are adults, they will reflect upon the sort of childhood and adolescence that their parents provided to them.  I accept the full force of the submission made on behalf of the father that the Children are entitled to have and maintain a bond with him.  In the circumstances of the case, I will make interim orders that the Children spend time with their father in accordance with those set out in these reasons for judgment.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 22 October 2019