COULTER & COULTER

FAMILY COURT OF AUSTRALIA

COULTER & COULTER

[2015] FamCA 1162

FAMILY LAW – CHILDREN – interim orders – where the wife seeks equal shared parental responsibility, that the children are returned to her care and spend significant and substantial time with the husband – where the husband seeks sole parental responsibility, that the children live with him and spend time with the wife as may be ordered by the Court – where the husband seeks that the wife attend upon a nominated psychiatrist for the purpose of a mental health and psychiatric assessment – where the Court considers that is does not have jurisdiction to make an order that would require a party to attend upon a psychiatrist for the purpose of an assessment – where orders are made for equal shared parental responsibility – where orders are made that the parties be restrained from taking the children to a mental health professional without the consent of the other party – where orders are made for the parties and the children to attend upon a family consultant for the purposes of preparing a family report.

FAMILY LAW – FAMILY VIOLENCE – where both parties allege a history of domestic violence perpetrated by the other – where there is an intervention order naming the husband and the children as protected persons – where the parties have different views of the appropriateness of administering corporal punishment to the children – where the wife concedes that she smacked the children for naughty or unruly behaviour but without excessive force – where orders are made that the parties be restrained from physically disciplining the children or allowing any other persons to do so.

FAMILY LAW – PROPERTY – interim orders – where the wife seeks an order that the binding financial agreement be set aside – where the wife seeks an order for spousal maintenance – where it is conceded that the binding financial agreement does not provide a barrier to the claim for spousal maintenance – where it is ordered that the husband pay the wife interim spousal maintenance.

FAMILY LAW – SUBPOENA – where consideration is given to the number of subpoena that has been issued – where consideration is given to Chapter 12 and 13 of the Family Law Rules 2004 (Cth) and the obligation on a party to give full and frank disclosure – where the Court notes that the purpose of issuing a subpoena is not as an alternative to discovery and should not be a litigation tool of first resort – where an order is made restraining the parties from issuing a subpoena without leave of the Court.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 4AB, s 60CC, s 61DA, s 65DAA(3), s 69ZV(2), s 90B, s 90K, s 117
Family Law Rules 2004 (Cth) r 13.01, r 13.07

Goode & Goode (2006) FLC 92-286
Re McGorm: Ex Parte Co-operative Building Society of South Australia (1989) 86 ALR 275

APPLICANT:

Ms Coulter

RESPONDENT:

Mr Coulter

FILE NUMBER:

ADC

4217

2015

DATE DELIVERED:

23 December 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

15 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Culshaw Miller Divorce & Family Lawyers

Orders

That further consideration of the proceedings be adjourned to 25 February 2016 at 10am.
That the husband do pay to the wife by way of interim spousal maintenance the sum of ONE THOUSAND AND THIRTY DOLLARS ($1030) per week, to be paid by electronic fund transfer into a bank account as may be nominated by the wife with the first such payment to be made on 24 December 2015.
That the parties do have equal shared parental responsibility of the children B born … 2009 and C born … 2011 (“the children”).
That the children shall live with the wife from 4.30 pm on 25 December 2015 until 6 pm on 1 January 2016 and thereafter on each alternate week from 6 pm on Friday until 6 pm on the following Friday PROVIDED that upon the commencement of the 2016 school year the wife’s time with the children shall commence at the conclusion of school on Friday to the conclusion of school on the following Friday.
That the children shall live with the husband at all other times.
That the husband and wife be restrained and an injunction granted restraining them from:
(a)physically disciplining the children or allowing any other person to do so;
(b)taking the children to any psychologist, counsellor, psychiatrist or other mental health professional without the written consent of the other party or order of the Court;
(c)discussing these proceedings, the Magistrates Court proceedings and any allegations as to the conduct and behaviour of each of the parties with the children or to any other person in the presence of the children.
That the parties do facilitate the children being able to telephone the other parent at any time that the children or each of them shall request to do so.
That the children do receive incoming calls from the other parent between 6.30 pm and 7.00 pm on each day during any period where the children are living with the other party and that each party ensure that their mobile telephones are switched on and not otherwise engaged during the said period AND FURTHER that the children are available and present to receive such calls.
That the parties are restrained and an injunction is granted restraining each of them from contacting and/or communicating with the other whether by telephone, email or text messaging other than as may be strictly required to give effect to the terms of this order or as may be reasonably required should the parties wish to engage in private counselling.
That all handovers that do not take place at the children’s school shall occur at Hungry Jack’s, Suburb D or such other place as the parties may agree in writing.
That the parties shall advise the other forthwith in the event of any serious accident, injury or illness suffered by any child and of all or any other significant medical and/or other treatment as may be received by such child.
That the parties do authorise the other to receive any and all information from any treating doctor, dentist or other agreed health professional.
That save as to any position that may be adopted by the principal of the E School, there shall be no restriction in respect of either party attending the school for any proper purpose and in respect of any event, occasion or circumstance in which parents would ordinarily be expected to attend or be invited.
That each party be restrained from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia.
That the Australian Federal Police place the names of the children B born … 2009 and C born … 2011 on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until further order of the Court or the consent of the parties.
That the parties and the children attend upon a family consultant or appropriately qualified psychologist for the purposes of preparing a family report directed to the issues of the interim parenting arrangements for the children to spend time with each of the parties.
That the parties be restrained and an injunction granted restraining each of them from issuing further subpoena without leave of the Court.
That the husband have leave to dispense with the provisions in Chapter 13 of the Family Law Rules 2004 (Cth) requiring the husband to file a Financial Statement.
That paragraphs 4 to 14 and 16 to 31 of the interim orders sought by the wife in the Amended Initiating Application filed 11 December 2015 be dismissed.
That paragraphs 3.3 to 14 of the interim orders sought in the Response filed 9 December 2015 be dismissed.
That leave is given to either party to provide E School with a copy of these orders and reasons for judgment.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4217 of 2015

Ms Coulter

Applicant

And

Mr Coulter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 11 December 2015 (the initial Initiating Application was filed on 10 November 2015), Ms Coulter (“the wife”) seeks parenting orders in respect B born in 2009 and C born in 2011.
In summary, the wife seeks that the parties have equal shared parental responsibility, that the children live with her and spend significant and substantial time with the husband.
She also seeks that a Binding Financial Agreement executed by the parties in or about 2007 be set aside and that thereafter orders be made for property settlement.
The focus of the hearing on 15 December 2015 is in respect of the interim orders sought.
She seeks an order that she be at liberty to reside at the property situate at F Street, Suburb G and by way of urgent interim spousal maintenance she seeks the sum of $2600 per week.
Under the heading of interim financial issues the wife seeks a lump sum payment on account of her costs in the sum of $100,000 and a similar amount by way of partial settlement of property.
It is conceded that at least in respect of the sum sought by way of partial settlement of property, there will need to be argument as to whether there is jurisdiction to hear that application or indeed even an application under s 117 of the Family Law Act 1975 (Cth) (“the Act”) until there has been a determination of the wife’s claim that the Binding Financial Agreement should be set aside.
At this stage the extensive affidavit material provides little or no assistance as to the basis upon which the Court would find that the financial agreement is not binding or what matters pursuant to s 90K of the Act would support the contention that the financial agreement may be set aside.
What is conceded however is that the Binding Financial Agreement does not provide a barrier to the wife’s claim for spousal maintenance.
Accordingly, the wife’s claim for the payment of a lump sum pursuant to either the costs power or by way of partial settlement of property was not pressed.
The wife sought an order that there be a stay of the Magistrates Court proceedings involving the consideration of whether an ex-parte intervention order made on 3 November 2015 should be confirmed.
The wife has abandoned that application and accordingly it does not need to be further considered.
Consistent with the final orders sought, the wife seeks an order that the parties be restrained from physically disciplining the children or allowing any other person to do so, taking the children to any psychologist, counsellor, psychiatrist or other mental health professional without the consent of the parties and discussing the proceedings with the children or any person in the presence of the children.
More detailed parenting orders are set out to take into account special occasions but of more immediate moment the Christmas period.
The wife seeks orders that would regulate the exchange of information between the parties as to the welfare of the children and matters relating to handover. Those orders are predicated on the wife being successful at least in part in the restoration of the children returning to her primary care.
Each of the parties seek that there be a family assessment report prepared. Upon further investigation, the psychologists nominated by the wife were not reasonably available and the parties have devolved to two single experts who are available to undertake the report in a timely fashion and before the end of February 2016.
Whilst I propose to order that a family assessment report be undertaken, it will remain a matter of agreement between the parties as to the nominated single expert and in the absence of agreement, as may be ordered by the Court.
Neither party seeks the appointment of an Independent Children’s Lawyer. I do not consider that such an appointment is warranted at this stage.
During the course of the hearing I made adverse comment as to the extent to which in the short life of this matter (barely one calendar month), a raft of subpoena had been issued with the wife foreshadowing a further seven.
The purpose of issuing a subpoena is not as an alternative to discovery and should not be a litigation tool of first resort.
It has not been established that the parties will either ignore or seek to circumvent their obligation to make full and frank disclosure and to comply with the detailed requirements of discovery as provided in the Family Law Rules 2004 (Cth) (“the Rules”).
The rules in respect of disclosure are to be found in Chapter 12 and Chapter 13 of the Rules.
Rule 13.01(1) provides:
(i)Subject to sub-rule (3), each party to the case has a duty to the Court and to each other to give full and frank disclosure of all information relevant to the case, in a timely manner.
The note to the rule provides a timely warning:
Failure to comply with a duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure including:
(a)disclosure of financial circumstances (see Division 13.1.2);
(b)disclosure in production of documents (see Division 13.2.1); and
(c)disclosure by answering specific questions in certain circumstances (see Part 13.3).
Rule 13.07 provides that there is a general duty of disclosure that applies to each document that:
(a)is or has been in the possession, or under the control, of the party disclosing the document; and
(b)is relevant to an issue in the case.
The decision of Re McGorm; Ex parte Co-operative Building Society of South Australia (1989) 86 ALR 275 is apposite. At page 278 Von Doussa J said:
The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making enquiries from the person in whose possession the documents now are…
Accordingly, where there is not a focus for the evidence that is being sought under subpoena to be introduced into evidence, the normal obligations that parties have to make full and frank disclosure should not be abrogated.
The basis for the leave being sought by the wife to issue subpoena is predominantly a “fishing” expedition.
I do not propose to grant the leave that the wife seeks and propose to order that neither party be permitted to issue subpoena without first seeking leave of the Court.
For similar reasons, I do not propose to order the disclosure that the wife seeks. There is nothing remarkable pertaining to the category of documents that is described in paragraph 31 of the application and in any event the documents that are required by simple adherence to the Rules are comprehensive.
The husband concedes that he may need to file a Financial Statement, but for the purposes of the wife’s spousal maintenance application, it is conceded that there is no financial impediment if the Court considers that an order should be made in her favour.
By Response filed 9 December 2015, Mr Coulter (“the husband”) seeks that he have the sole parental responsibility for the children and that they live with him and spend time with the wife as may be ordered by the Court.
Consistent with the wife’s orders, he seeks that the children be placed on the Family Law Watchlist. Given that the parties agree that such an order should be made by consent (notwithstanding that I have a view that the order is not needed), I propose to make that order. A related issue is the retention by the husband of the children’s passports. The wife seeks that they are to be delivered up to the Court only to be released by subsequent order. At this stage I do not consider that such an order is warranted and for the moment I propose to leave the passports with the husband until the parenting arrangements are more settled.
The focus of the hearing arises principally because the husband seeks orders on an interim basis that the children live with him and that they spend supervised time with the wife as follows:-
For a period of six hours as follows:
(i)on three week days per week;
(ii)on Saturday 19 December 2015 and each alternate Saturday thereafter;
(iii)on Sunday 27 December 2015 and each alternate Sunday thereafter;
(iv)at such other times as can be agreed between the parties or in default of agreement from 10 am to 4 pm;
(v)from 2.30 pm until 7 pm on Christmas Day and 10 am to 4 pm on Boxing Day;
provided that all time that the children spend with the wife is supervised by an independent supervisor.
The husband proposes a Mr H a psychologist who has undertaken six periods of supervised time between the wife and the children.
The husband seeks to further explore his contention that the wife may suffer from mental health issues and accordingly would seek to subpoena all records prepared by all and any health professionals that the wife has attended. Thereafter, the wife should arrange to attend upon a nominated psychiatrist for the purpose of a mental health and psychiatric assessment.
My remarks in respect of the wife’s application for leave to issue subpoena are applicable to the orders sought by the husband.
It is very much a case of each of the parties pulling themselves up by their own bootstraps in the hope that an unrestrained process of trawling through various aspects of the parties lives may well reveal a “smoking gun”.
It is for each of the parties to present evidence to the Court which they consider may be relevant to the orders that they seek or to refute an allegation and assertion made by the other party if considered of sufficient importance.
Whilst it may be a matter of importance in a particular case, I am of the view that I do not have jurisdiction to make an order that would require a party to attend upon a psychiatrist for the purposes of an assessment. The Court may well be assisted by a psychiatric assessment but that is a matter very much for each of the parties in terms of their case strategy.
In the decision of L & T (1999) FLC 92-875 the Full Court discussed and decided the issue as follows:
[51]While we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The court’s power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
Accordingly, I do not propose to make any order requiring a psychiatric assessment nor that a report be prepared.
Obviously the husband does not propose any orders by way of settlement of property other than he seeks a swap of the respective motor vehicles of the parties and an arrangement for the delivery to the wife of her personal possessions.
The husband does however offer to pay interim spousal maintenance.
The husband owns two substantial properties at I Town and Suburb G. At the present, the husband and the children reside in the Suburb G property and the husband has allowed the wife to remain in the I Town property. It is uncertain as to the husband’s position in the medium to long term, but I accept that whilst it is his case that there is no jurisdiction to hear and determine the wife’s application for settlement of property unless and until the Binding Financial Agreement is set aside, nonetheless and subject to any future agreement, the wife is able to remain in the I Town property.

It may be that she does not wish to remain in that property given that it is a reasonable distance from Adelaide. At the moment the residence of each of the parties is not an issue. The wife has abandoned that part of her application seeking to return to the Suburb G property and the subsequent removal of the husband.
The husband offers to pay all of the bills relating to the wife’s outgoings including expenses in respect of the home, motor vehicle (save and except fuel), mobile phone, internet access, insurance, utilities and private medical cover.
In addition, the husband has provided the wife with a credit card with a limit of $4500. The wife is free to use the credit card and it is paid on a monthly billing cycle. There is some uncertainty as to the extent of the husband’s ongoing liability, but his counsel suggested that it amounted to a payment of about $3000 a month. He says that it is sufficient for the wife’s day to day personal expenses.
He does concede that if the wife would prefer a periodic cash payment to be paid to a nominated account, then conditional upon the credit card being returned, such proposal would be accommodated.
Whilst it is denied by the husband, the wife asserts that the current arrangement, which enables the husband to consider the wife’s expenditure item by item as recorded on the credit card statements, is an unnecessary incursion into her private life.
I make no finding in respect of that and notwithstanding that it was alleged by the wife that the husband was financially controlling during the course of the relationship, for the purposes of this interim application I do not consider it is necessary to make that finding and counsel were advised that it would not be a factor I would consider.
There is a further offer of a lump sum of $15,000 to assist in the wife’s legal fees.
That is a matter for the husband and is potentially subject to jurisdictional determination as to whether the costs power under the Act survives notwithstanding the Binding Financial Agreement.

DOCUMENTS RELIED UPON

The wife relies upon the following documents:-
·Amended Initiating Application filed 11 December 2015
·Wife’s Affidavit filed 10 November 2015
·Wife’s Affidavit filed 8 December 2015
·Wife’s Affidavit filed 14 December 2015
·Affidavit of wife’s solicitor filed 14 December 2015
·Affidavit of Mr J filed 14 December 2015
·Affidavit of Ms K filed 8 December 2015
·Financial Statement filed 17 November 2015
The husband relies upon the following documents:-
·Response of husband filed 9 December 2015
·Affidavit of husband filed 9 December 2015
·Affidavit of husband filed 11 December 2015

NOTICE OF RISK

Each of the parties has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. The particulars of the abuse are as follows:-
(1)The wife alleges the husband is causing serious psychological harm by denying the wife access to the children.
(2)The wife alleges that the husband is causing the children serious psychological harm by encouraging and/or coercing the children to make false disclosures in relation to the wife.
(3)The wife alleges that the husband has committed family violence within the meaning of s 4AB(2)(g)(h) and (i) of the Act against the wife.
(4)By way of coercive control and financial control of the wife.
(5)The husband has disciplined the child by lifting her up from the clothing, causing her to choke.
The particulars of risk as alleged by the husband are as follows:-
(1)The particulars of the allegations of child abuse are described more particularly in the affidavit of the husband and filed contemporaneously herewith. Refer to [16, 28, 30, 33-39, 51].
(2)The children have made disclosures of the wife’s alleged abuse to the husband and to E School.
In the consideration and determination of the orders sought by each of the parties, I am mindful of the separate allegations of the parties that the children are at risk in the care of the other.
Issues of risk arising from abuse or family violence are required to be considered when a Court determines what is in the best interests of a child. In particular, I have regard to the primary considerations as set out in s 60CC(2) of the Act and do not ignore the requirement in s 60CC(2A) that I must give greater weight to the need to protect the child or children from physical or psychological harm, abuse, neglect or family violence.

BACKGROUND

The wife is currently aged 38 years and is a citizen of the United States of America (“USA”) with a grant of permanent residency status in Australia. The husband is aged 49 years and is an Australian citizen.
The parties commenced their relationship in 2004. The parties became engaged in 2007 and were married in 2008. The parties separated on 1 November 2015. They consider that there are irreconcilable differences.
The wife had a history of employment whilst in the USA albeit with a modest income. It appears uncontroversial that following her move to Australia and certainly since the birth of B, she has not been in employment of any form. The wife alleges that the husband was opposed to her seeking employment. The husband disagrees with that contention. The effect however is the same namely, that for a period of about eight years the wife has not been employed.
The husband is a director of a successful logistics company in South Australia.
Upon the engagement of the parties in 2007, agreement was reached that the wife would enter into a financial agreement pursuant to s 90B of the Act.
That agreement is found at Annexure MC21 to the husband’s principal affidavit.
It is sufficient to note that by the Amended Initiating Application the wife now seeks that the agreement be declared not binding and be set aside. If successful, the wife seeks orders by way of settlement of property. The husband maintains the integrity of the document but concedes that it is silent as to spousal maintenance.
Accordingly, there is no impediment to the wife bringing an application for spousal maintenance and at least in the interim, the issue is not one of entitlement but rather, quantum.
Each of the parties alleges domestic or family violence by the other. For her part, the focus of family violence is underpinned by the wife’s assertion that the husband controlled and belittled the wife. She also alleges that he was financially controlling and she had to account to him for monies spent.
I do not consider that on an interim basis I am able to make any finding as to whether the husband was financially controlling of the wife to an extent that would satisfy the definition of family violence in s 4AB of the Act.
In any event, such a determination is not necessary at this stage.
Of greater moment is the allegation of the husband that the wife perpetrated family violence on both the husband and the children. He says that he witnessed a number of incidents of violence either directly on his person or in relation to the children. He gives some examples in paragraph 16(a) to (e) of his principal affidavit. The wife denies any family violence but counters the husband’s allegations by denying each and every allegation including an assertion by the husband that the wife may suffer from mental health problems.
The wife does candidly acknowledge that the relationship of the parties was torrid and at times aggressive. They argued and the wife says that on 25 October 2010 such was the disruptive conduct of each of them whilst on holidays that a hotel manager requested that they spend the night apart.
Unfortunately each of the parties would react to the other’s behaviour with aggression. The wife says that there was pushing and shoving and a reasonable summary of her position (although not the position of the husband) is that she gave as good as she got.
Of greater relevance is the concession by the wife that the parties may have had a different view of the appropriateness of administering corporal punishment to the children. She concedes that from time to time it is possible that she smacked the children for naughty or unruly behaviour as a measure of last resort. She asserts however that any physical touching of the children was entirely without excessive force.
At paragraph 16(f) of his principal affidavit, the husband alleges that on 17 December 2014 the wife struck B “severely with an open hand on the backside…”.
The husband kept what he describes as an “intermittent diary and notes of many incidents that I witnessed, although I do not say the records are complete and am aware that I did not record each instance”.
The diary notes are found at Annexure MC02 to the husband’s principal affidavit.
The use of the notes loomed large in the submissions made on his behalf.
For reasons that will be later explained, I place little or no weight on the husband’s diary and notes other than to assist in chronology, but certainly not as to the evidential substratum.
Whilst the background provides the foundation for the current actions of the parties, the catalyst for the proceedings arises from the alleged incident on 1 November 2015 and that which followed.
The wife alleges that she and her husband had a disagreement at 11 am on 1 November 2015. C had been misbehaving and had received multiple warnings from the wife about her behaviour. C had a tantrum and threw her food onto the floor. The wife says that with an open hand she “moved with low force to smack her bottom”. The wife says that she did not make contact as the children had outmanoeuvred her.
The husband then pushed the wife up against the counter and in doing so C was knocked to the floor. The husband then shouted at the wife and started to swear.
The husband alleges that the wife did strike C on the buttocks in a manner that he described as “hard and severe”.
He says that he then intervened and placed himself between his wife and the child. C had fallen to the ground. It is at that point that the husband complains that the wife then punched him on his right ear. B then entered the room and according to the husband adopted a previously discussed protection procedure and took C to the back yard. At that point the husband admits he said to the wife “you can’t hit the kids you cunt”. He then left the home and took the children to his mother’s home which is in close proximity. The police were called. No charges were pressed by the husband, but following the police involvement the husband took the children to his sister’s house.
The wife admits that at some point B entered the room and far from there being any clearly understood plan by the child in circumstances where she observed their parents arguing, it was the wife who asked B to take C outside.
She says that when she attempted to comfort the children given their obvious distress the husband blocked her way and she pushed him in the head. According to her, the husband then shoved her back into the house, called her a cunt and said “your children hate you”. If the wife’s version is accurate, she says that the children were within ear shot of the argument.
The wife confirms that thereafter the police attended and she made a statement as to her version of the events including an allegation of the husband’s aggressive behaviour.
It appears that certain disclosures were made by the child to employees of E School on 2 November 2015 and on 3 November 2015. The husband applied and obtained an interim intervention order which provided for a total prohibition on the wife having any contact or communication with either the husband or the children. She was not permitted to enter within 50 meters of the former matrimonial home at Suburb G, the husband’s sister’s home at Suburb L, or the children’s school at Suburb M. Following further application by the husband, the intervention order was modified on 19 November 2015 to permit contact with the children pursuant to an order made under the Act.
The intervention order is to be further considered on 20 January 2016. I propose that the parties will be at liberty to provide a copy of these reasons and the orders made to the Magistrates Court upon the further hearing and to E School.
The wife admits that on a few occasions in the past she has smacked the children on their bottom. She says that it is without force and is intended as a measure of last resort. She admits intending to smack C on 1 November 2015 but did not connect. The husband alleges that the wife had been repeatedly aggressive towards the children and was excessive in her discipline.
What is conceded however is they were in the primary care of the wife until the date of separation.
It is difficult to determine on an interim basis which version of the events as extolled by the parties is more reflective of what actually occurred.
The parties clearly had a volatile and at times aggressive relationship as between each other. The children were no doubt exposed to the disharmony within the household. I suspect that at times the level of argument would have been distressing to them.
There is nothing inherently implausible about either parties’ recollection of what occurred on 1 November 2015.
The orders sought by the husband are predicated upon corroboration being linked to his exposition by reference to his diary notes and purported disclosures made by B to employees of E School.

DIARY NOTES

I consider that the husband’s diary notes as annexed to his affidavit to be unhelpful. They are self-serving statements and the common law rule which has not been changed by the Evidence Act 1995 (Cth) is that they are inadmissible to support the credibility of a witness.
The rationale for the prohibition is that it presents a person with an opportunity to created false evidence and therefore has little probative value. There are some exceptions and that is where the evidence of statement is made contemporaneously with and directly concerning the event in issue.
In this case the husband properly admits that the notes should not be considered as contemporaneous and they are heavily qualified.
It is difficult to understand what evidential assistance the notes in their current form were likely to provide on an interim hearing.
Other than for matters of chronology, I consider it would be unsafe to place any weight on the husband’s diary notes.

E SCHOOL

The gravamen of the husband’s application arises from the alleged disclosures of B to employees of the children’s school. It is an important first step that the husband admits in paragraph 33 of his principal affidavit that:
I felt it appropriate following the incident of 1 November 2015 to inform [E School] that there had been police attendance at the [Suburb G] property the night prior, as I thought the children may have been affected by what they had experienced, seen and heard.
The notes from E School were obtained under subpoena and are Annexure “MC03” of the husband’s principal affidavit.
The husband seeks to rely upon the subpoenaed notes as corroboration of his assertion that the wife had hit the children over an extended period. The husband’s case is that notwithstanding his concerns about the wife’s behaviour with the children and even the assertion that he and B had prepared a protection plan to deal with the wife’s aggressive behaviour, it was only after the disclosures made by B to the school that he realised the extent of the abuse.
It is difficult to make sense of the E School notes. It is hard to differentiate the source of the information that appears in the notes. It is not certain whether the notes corroborate paragraph 33 of the husband’s affidavit namely, that he thought he should advise the school of what had happened on the previous night, or whether the suggestion in the notes that upon arriving at school, B spontaneously advised the teacher that an incident had occurred and the police were called.
It may be the case that on an interim basis such a consideration is unnecessary. In this application it is the purported disclosures made by B that provide the basis for the husband’s assertion that there has been ongoing physical violence.
The allegation is that B disclosed to the school that “Mummy squeezes her hand around my neck”, “Mummy hits us” and “Mummy punches me in the stomach”.
In discussions with the children C is alleged to have said “Mummy pushes her for two years now” and B is alleged to have said “pushes me on my neck x eight times, got pushed on the weekend” and “punches me with a closed fist in the stomach”.
At page 51 of the annexures to the husband’s principal affidavit where the teacher apparently interviewed the children as to what had happened on the weekend, it is recorded that B said:
Dad sick Mum got angry at Dad, Mum pushed [E] over, Dad said ‘go outside and hide under a tree’. Mum pushed [E] on the chest with two hands, [E] fell backward & hurt her bottom & she bit her lip – crying & [B] took her outside to a tree.
Thereafter the child makes certain disclosures.
It is further recorded that the husband returned to the home to get the children’s swimsuits and “Miss grumpy pants” didn’t come. I assume that the reference is to the wife.
No attempt was made by the school to contact the wife or to understand whether there was a version of the events different to that as being presented by the husband. Furthermore, it is surprising that evidence upon which so much relies is presented to the Court by way of a subpoenaed document as opposed to an affidavit from the author.
That of course is no barrier to me receiving evidence that would in the ordinary course offend the rule against hearsay. Section 69ZV(2) provides:
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
It is however a matter within my discretion as to the weight (if any) that may be attributed to evidence admitted under s 69ZV(2).
B was spoken to after her alleged disclosures. The head of the junior school engaged in a meeting with the child and asked B whether there was anything that she would like to talk about. The following is recorded:
I’m sad [Ms N] because my baby bird died, the one in my backyard I found. I wanted to keep it but Mummy said ‘no’ but said let’s try and find its mummy but we couldn’t. So we put it in the car to go to [S O’s] house when mum punched dad in the ear. She’s the worst mum in the world and she’s really stressed. My bird died. I don’t sleep very well at other people’s houses but we had to go because mum hit dad and the police came. Mum is a liar you know because she punched dad and she said she was going to tell the police he hit her first but she didn’t because I was there. She’s a liar.
The child further reports in answer to a question as to how she was feeling:
Still sad. I had to grab [P] (sister in the Mamie House) and hide her behind a tree. That’s when I saw dad’s glasses fly of his face when he got punched but he caught them. Dad never yells or be naughty. He took me and my sister to [Ms O] and he talked to [Ms R] because he took me to school.
It could not be said even from the most generous perspective that the interchange between B and the head of the junior school is in any way consistent with the matters raised by the husband or in respect of that which is purportedly recorded between B and the teacher earlier on 2 November 2015.
There is uncertainty as to whether B was in the room and would have been in the position to witness anything that occurred between the parties.
If it is an accurate recording of the child’s allegation that her mother is a liar and therefore is likely to lie to the police about what had occurred in the argument between the husband and the wife, it should have at least been a warning to the husband that perhaps much of B’s presentation is not necessarily an accurate reflection of history but rather, her presentation is significantly coloured by the sheer drama of the events of the night before and that which followed.

Whilst I am certain that the school had the best of intentions, their obligation to mandatorily report did not involve any requirement to interview the children or to attempt some form of counselling or at worst investigation in circumstances where they could not have been certain as to the truth of the matters raised.
If the parties had jointly requested the school to provide some counselling service on the basis that the parties had separated and that the children were likely to be adversely affected, then some sense could be made of the school’s further involvement but not otherwise. That position is further reinforced by the knowledge that the school had of police involvement and whatever investigation or consideration might thereafter result. The school is now left in the invidious position where as a result of their involvement, the husband seeks orders that the children should spend highly conditional time with the wife and the now complex circumstance where the school’s ability to engage with the wife may well be compromised.
If the notes are accurate, there has been constant communication between the husband and the school and the school has now been in contact with police from the Family Violence Unit and a request has been made for employees of the school to be the subject of formal interview.
As if to further complicate the matter, at pages 75 and 76 of the annexures to the husband’s principal affidavit the school notes reflect communication from Ms K writing to the school and setting out her observations that the school has acted without all of the information and that she has made observations of the husband’s poor conduct towards the wife.
I place no weight in the matters raised in that correspondence other than to note the difficult situation that the school now finds itself in as a result of what appears to be a preparedness to accept the husband’s assertions without seeking the balance that may have been provided by speaking to the wife.
I consider that the notes subpoenaed from the school and annexed in their entirety to the husband’s principal affidavit as having a significant potential to be unreliable and I do not give them the evidentiary weight that would be necessary for the notes to support the husband’s application. They are prejudicial and lack probative value.

LEGAL PRINCIPLES

I have regard to the decision of the Full Court in Goode & Goode (2006) FLC 92-286. At [82] of the judgment the following is stated:-
In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests or as a result of consideration of one or more of the matters in s 60CC, or impractical;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of considerations of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither party has sought it, if the court considers after affording procedural fairness to the parties it is to be in the best interests of the child.
Since the incident on 1 November 2015, there were difficulties in arrangements being made for the wife to spend time with the children. It is the husband’s position that he supports the relationship with the wife but he considers that without supervision the children are at risk.
For her part, the wife is fulsome in her recognition that whilst the children are more closely attached to her, they nonetheless share a good relationship with the husband and they adore him. She recognises that the husband likewise “puts the children on a pedestal”. She opines that the children’s greater attachment to her is as a reflection of the long hours that the husband attends to his work but she makes the fair concession that each of the parties plays a different role in the children’s lives.
It is not controversial that the wife was not able to have any contact with the children until mid-November 2015. The first physical contact occurred at the end of November and in her affidavit of 8 December 2015, the wife alleges that in her conversations with the children they have been anxious to see her but that all reasonable requests were denied.
The husband arranged for the children to see a psychologist on at least three occasions in November. It is not disputed that the wife was not included, nor was there any opportunity for her to express her view as to whether the children did or did not need to attend upon a psychologist. Eventually and following an extensive undertaking being given by her, the wife was able to spend time with the children supervised by Mr H who is a “provisional psychologist” in the employment of S Consulting. There have been now six periods of observed interaction, four of which are the subject of report by the wife in her affidavit. Those matters are apparently not disputed by the husband. On that basis, I accept without equivocation the accuracy of the wife’s statements. The children and their mother have a warm and loving relationship.
The wife sought by subpoena the notes of Mr H presumably to provide some corroboration for her assertion as to the depth and strength of the children’s relationship with her. That subpoena is the subject of objection by the husband. Whatever the basis of the objection may be, given the husband’s concession that he does not dispute the wife’s evidence as to the children’s reaction to her on the four reported occasions, it seems that the subpoena to Mr H is now irrelevant.
It has not been explained to the Court why it was necessary for the children to be the subject of any counselling or therapy. Certainly the wife was not involved and it is difficult to understand how that process could be considered in any way beneficial to the children without the health professional having a full understanding of the family dynamics. There appears to be no understanding by the husband as to what the brief of the psychologist is in relation to the children’s counselling, nor any understanding as to when the process may achieve a goal that would recommend it be brought to an end.
Even with the most generous view, the parties should be concerned at the extent to which the children have been interviewed, assessed and counselled in the space of a period that is less than two calendar months. There is the potential for the process in and of itself to be harmful and abusive to the children. It also has the potential to render any real complaint by the children suspect.
It could not be considered that the further assessment of the children in what is an uncertain and unguided process could be considered in their best interests. I propose to order that neither party cause the children to be the subject of further involvement with health professionals unless it is with the joint agreement of each of them.
I consider that there is no good reason why the parties should not share in the parental responsibility for the children. They did so with success up until 1 November 2015. That pre-existing state of affairs should continue. The parties each have appropriate accommodation albeit there may be some geographical issues for the wife in terms of the distance between the home in which she resides and the children’s school.
Nonetheless, the concessions by the husband as to the interim financial arrangements for the wife and therefore the children, represents a step forward. The husband would have the Court understand that he is entirely respectful of the need for the children to have a relationship with their mother and for her to be involved in their lives. She makes the same concession in his favour.
I propose to order that the parties have equal shared parental responsibility.
As a result of that determination I am obliged to consider whether there should be equal time or if not, then significant and substantial time.
I do not find that at present there is evidence sufficient for a finding that the children are at risk in the care of their mother. To the extent that she has made admissions that she has smacked the children on five occasions, it would seem sensible that the parenting orders include an injunction that restrains each of the parties from administering corporal punishment. I am satisfied from the affidavit material that the wife will be reliably compliant with any order of this Court. There is no assertion that she has not done so and in any event she has met without complaint by the husband the very onerous conditions that he placed upon her resuming communication and physical time with the children. There is no complaint or assertion that she did not follow the position as was agreed notwithstanding that she had no obligation to do so.
The parties have separated and at this stage it is reasonable to assume that the separation is final.
The family finds itself now in the children’s school holidays and given the age of the children there is no reason why the holidays should not be shared on a week about basis. It is a practicable arrangement.
The parties agree that there should be an urgent and early family assessment report and whilst I am again concerned that such a process will inevitably result in the children potentially being the subject of interview and assessment, nonetheless, given what has happened, it may be necessary for the Court to have that assistance in order to determine the long term interim orders that would best serve their interests.
At this stage however I propose to order that the children spend time with each of the parties on a week about basis appreciating as I do that there may be difficulty in the children being transported from the wife’s residence to the children’s school. Whilst that may be somewhat disruptive, given that the matter is to return for further consideration at the end of February 2016, I suspect that there will be little adverse practical consequence.
Specifically, I do not consider that there is any need for supervision or undertaking by the wife.
The wife seeks orders in her Amended Initiating Application that the children spend time with her from 4.30 pm on Christmas Day. I propose to order that the children come into the wife’s care on Christmas Day and remain with her for a period of seven days which thereafter will be on an alternating basis.
The parties have also agreed that certain minor parenting orders can be made by consent. That consent is by way of a draft minute of order and to the extent that the orders proposed by the parties are consistent with the orders that I make, I will incorporate their consent.

FINANCIAL MATTERS

The wife seeks that the husband pay to her by way of urgent interim spousal maintenance the sum of $2600 per week. The husband concedes that at present (but only on an interim basis) he accepts that she has an entitlement to spousal maintenance and offers a sum that approximates $3000 per month. In addition, the husband pays a range of other expenses which involve the wife’s current residence at I Town, her motor vehicle and some other personal expenses.
The husband does not seek to withdraw the non-periodical financial provision.
The wife’s claim for urgent spousal maintenance is based upon the expenses as set out in paragraph 108 of her affidavit filed 10 November 2015 totalling $2547. The husband however confirms that he will continue to pay the following items:-
c.        Gas  $ 30
d.        Electricity  $100
e.        Water  $ 50
f.         Telephone and mobile          $100
k.        Medical, Dental, Optical     $100
o.Gardening/lawnmowing       $300
p. Cleaning (house/pool)         $380
v.Insurances  $257
Total$1317
The balance it therefore $1230.
Giving the wife’s expenses some greater scrutiny would suggest that on an urgent and interim basis there should be a reduced allowance for holiday and gifts.
That further reduces the balance by $200 leaving an amount of $1030.
Whilst that is higher than the husband’s current proposal, given the children will be spending equal time with the parties, it is likely that some of the wife’s expenses may be increased as a result.
Accordingly, I propose to order that the husband pay by way of spousal maintenance to the wife the sum of $1030 per week to be paid into an account as she may nominate conditional upon the wife returning to the husband the credit card that she currently uses and that he pays.

SUBPOENAES/DISCLOSURE

Each of the parties seek leave to issue a raft of subpoena and to seek substantial discovery from the other.
Whilst I accept that there is potentially a financial complexity to the husband’s affairs, nonetheless, there is a concession by the husband that he is able to meet whatever reasonable order the Court may make in respect of the wife’s urgent application for spousal maintenance that would not then require nor warrant the thrust and focus of the subpoenas that the wife seeks to file nor the financial investigation she seeks to undertake.
It is conceded that there is a Binding Financial Agreement in place and until and unless it is set aside, the jurisdiction of the Court to require the provision of financial information may well be limited to that which is necessary to explore the extent of the jurisdiction or limitation, but not beyond that. If, as the husband purports, the Binding Financial Agreement excludes the wife from any consideration other than spousal maintenance, there would appear to be no good reason for the Court to intervene unnecessarily.
Accordingly, I do not consider that at this stage there is any need for the husband to file either a Financial Statement or to order that the husband disclose the documents as set out in paragraph 31 of the Amended Initiating Application.
Whilst I do not consider that the parties need leave to issue subpoena, it appears that each of them has been too ready to utilise the subpoena provisions in the Rules either as a method of searching for evidence that might assist their case irrespective of any consideration of the relevance of the documents sought, or because of a perceived need that every obscure rabbit needs to be chased down an ever increasing number of borrows.
I propose to order that the parties are restrained from seeking to issue further subpoena without leave of the Court.

PSYCHIATRIC ASSESSMENT OF THE WIFE

As I have indicated, I do not consider that I have jurisdiction to order that the wife attend upon a psychiatrist for the purposes of a psychiatric assessment. I am also satisfied that there is no evidence that would warrant the Court’s concern as to the wife’s mental health. I do not propose to order that there be any psychiatric assessment of either of the parties, nor do I consider that the husband should have leave to issue subpoenas seeking production of documents from the mother’s health professionals.

CONCLUSION

I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 December 2015.

Associate:

Date: 23 December 2015

[2015] FamCA 1162

23 December 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies