CURTAIN & FINCH

[2014] FamCA 97

FAMILY COURT OF AUSTRALIA

CURTAIN & FINCH [2014] FamCA 97

FAMILY LAW – CHILDREN – INTERIM PARENTING ORDERS – Whether proposed interim orders should be made – whether proposed interim orders are in the best interests of the children – husband’s costs application be dismissed.

Family Law Act 1975 (Cth), ss 69ZW, 117.

APPLICANT: Ms Curtain

RESPONDENT: Mr Finch

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 3642 of 2013

DATE DELIVERED: 17 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 17 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Popova

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT: Quintessential Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

it is ordered by the court that:

1. All applications for final orders be adjourned for hearing before Justice Thornton on 24 March 2014 at 10.00 am as a five day matter (noting that this matter will be listed with second priority) and that the evidence in chief of all witnesses be given by affidavit.

2. The matter be listed for mention before Justice Thornton on

   
   18 March 2014

   at 10.00 am.

3. By 4.00 pm on 13 March 2014, the applicant mother file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. The applicant mother file and serve electronically to … by 4.00 pm on 13 March 2014 the following:

   (a)a concise set of orders to be sought if different from those already filed;

   (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

   (c)the witnesses whom you seek to cross-examine at trial;

   (d)a list of objections to evidence upon which rulings are required; and

   (e)a bullet-point summary of argument in relation to the issues in dispute.

5. The applicant pay all setting down and trial fees by 4.00 pm on

   
   13 March 2014.  

6. The respondent to file and serve any affidavit in reply by 4.00 pm on

   
   20 March 2014.

7. No party file any further material other than as provided by these orders without leave of the Court.

8. Prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

9. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

10. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

11. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)the Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking that the matter proceed on an undefended basis.

12. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

13. The husband’s oral application for costs made this day be dismissed.

14. BY CONSENT there be interim orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

15. The solicitor for the Independent Children’s Lawyer engross the minutes and deliver them by electronic transmission to my Associate within seven days.

16. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS ORDERED BY CONSENT THAT:

UNTIL FURTHER ORDER:

1. That Orders 1 and 3 of the Orders made on 4 September 2013 be discharged.

2. That the Father spend time with the children, H born … March 2006, S born … July 2007 and W born … September 2008 as follows:

   (a)Each alternate week from Friday 7.00pm to Sunday 7.00pm commencing 21 February 2014;

   (b)For half of all the school holidays at times and dates as agreed and failing agreement the first half; and

   (c)Such further and other times  as agreed between the parties in writing.

3. That the time provided for in paragraph 2 hereof, shall take place in the substantial attendance of Ms B or Mr C or an alternative person nominated by the Father and known by the children; in the event that Ms B or Mr C are unavailable.

4. That changeover take place outside the police station at Town D.

5. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Finch 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 MELBOURNE

FILE NUMBER: MLC 3642 of 2013

Ms Curtain

Applicant

And

Mr Finch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the first day of a trial listed for five days concerning parenting orders for three children of the relationship.  The orders concern the children H who is seven years of age, S who is six years of age and W who is five years of age.  The mother, represented by counsel, has made an application for an adjournment and the children are represented by an Independent Children’s Lawyer.  The adjournment application was opposed by both the father and the Independent Children’s Lawyer.

2. The Independent Children’s Lawyer informed the Court that the Family Consultant who is to be cross-examined in the trial is unavailable for a period of at least two weeks due to ill health.  No notification was given to the Court by the Independent Children’s Lawyer that the Family Consultant was required for cross-examination until today and no notification was given to the Court by the Independent Children’s Lawyer of the unavailability of the Family Consultant until this morning.  It would appear that this health issue has only recently arisen.  The parties did not make the relevant inquiries about the availability of the Family Consultant until this morning, after the matter had been stood down.

3. In circumstances where neither the Court nor the parties were aware of the unavailability of the Family Consultant, the mother who is the applicant in the proceedings made an application for an adjournment for a period of three months to allow her to obtain funding to engage solicitors to prepare her affidavit material and counsel to represent her in the trial.  The mother has been assisted by solicitors until about October 2013.  Procedural orders were made by me at a hearing on 17 December 2013, which provided for a timetable for the parties to file affidavit material and case outlines prior to the trial.

4. The mother advised the Court that she would be unrepresented but that she would prepare for the trial.  The mother did not file any of the material required under the orders, but instructed solicitors to make an application for a grant of legal aid to prepare for the trial on 28 January 2014.  The solicitors submitted an application for a grant of legal aid the following day but it was rejected.[1]  A reconsideration was also rejected on the afternoon of 13 February 2014.[2]

   [1] Exhibit “A”.

   [2] Exhibit “B”.

Procedural History

1. Final parenting orders were made by consent in the Federal Circuit Court on

   
   

   25 January 2010.  There is a long procedural history and this trial was listed in the Family Court after proceedings had been transferred from the Federal Circuit Court after the mother filed an Initiating Application in the Magistrates Court of Victoria.  The mother filed a Notice of Risk of Abuse. 

2. The children have resided with the mother and her partner since separation, and the children are currently spending time with the father pursuant to interim orders made by Senior Registrar FitzGibbon on 31 July 2013.  Under those orders, the children spend time with the father each alternate Saturday between 10.00 am and 7.00 pm, supervised by his partner. 

3. There is a long history of protective involvement for the children with the Department of Human Services. There have not been any protection applications or proceedings in the Children’s Court. The information provided by the Department of Human Services under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) records that H, who is aged seven, has been subjected to emotional harm by both parents. This assessment has been based on 13 previous reports for the family group regarding themes of neglect, family violence, physical injuries, the mother’s drug use, and sexual abuse.

4. There has been a repeated history of allegations against other individuals who have allegedly sexually abused H, which has directly impacted on her.  Given the number of previous reports against other individuals, the validity of these reports have been questioned by Child Protection and Child Protection has been unable to substantiate that sexual abuse has occurred.  The report notes that Child Protection has further assessed that substantiated protective concerns are being appropriately responded to by the parents, as they have engaged with appropriate support services and no further protective concerns appear to be evident.  Therefore, the Department of Human Services has closed the case.

5. H was interviewed by police on 7 February 2013 and made a visual and audio recorded evidence interview about an incident where she stated that the father’s partner’s teenage son had exposed his penis to her.  She was also interviewed by police on 27 March 2013 in relation to allegations by her mother that H had disclosed to her mother that her father had masturbated in front of the child.  She was further interviewed by police in April 2013 in relation to further allegations against her father.  The police investigated these matters and no further action was deemed appropriate and no person has been charged with any criminal offence.

6. There is affidavit evidence from the father and his partner to the effect that the mother told the father that she no longer believes that he is responsible for sexually abusing H and believes that another person may be responsible.  The mother has challenged this evidence but has now indicated that she consents to the children spending each alternate weekend and half the school holidays with the father, provided that there is supervision by his partner and/or his partner’s father who resides in the same household.

7. The key issues in the trial will be whether there is an unacceptable risk of sexual abuse for H in the care of her father and whether the mother poses a grave psychological risk to the children’s welfare as a result of her conduct in making numerous allegations which may be false and resisting the children having a relationship with their father.  The trial will involve complex issues and there is no doubt that the mother would be assisted by legal representation.  It may also be the case that the other parties would be assisted, particularly in terms of costs, by the mother having access to professional legal advice.

8. It is clearly in the best interests of the children that the dispute between the parents be resolved as soon as possible, having regard to the impact which the conflict is having upon them as outlined in the comprehensive Family Report of the Family Consultant, dated September 2013.  It has now become apparent that none of the parties will have the benefit of cross-examining the Family Consultant for reasons beyond their control.  Regardless of whether the mother is ready to proceed with her application, the trial cannot proceed.  Although both the father and the Independent Children’s Lawyer have opposed the adjournment, they effectively require an adjournment also.

9. In these circumstances, I propose to adjourn the trial and make procedural orders for a five day trial commencing 24 March 2014.  The fact that the mother is not ready to proceed with the trial makes no difference to the fact that the Family Consultant is unavailable for cross-examination.  I will make those procedural orders later.

Husband’s application for costs

1. I note that there is no application on the part of the Independent Children’s Lawyer for a costs order against the mother. Counsel for the husband has made an application for costs of the adjournment because the father is funded by Victoria Legal Aid. The general rule is that each party should bear his or her own costs of proceedings under the Act. However, pursuant to s 117(2) of the Act, if the Court is of the opinion that there are circumstances which justify it in doing so, the Court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.

2. Section 117(2) of the Act mandates the factors to which the Court should have regard in considering what order, if any, should be made. The factors are:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party –

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matter;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   (e)whether any party to the proceedings have been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;  and

   (g)      such other matters as the Court considers relevant.

3. In considering whether there are circumstances which justify an order for costs being made, the weight to be attached to any of the considerations in s 117(2A) is wholly discretionary. Section 117(2A) must be read having regard to the primary position in s 117(1) that each party to proceedings under the Act shall bear his or her own costs. In this case, particularly where the adjournment has been occasioned by the Family Consultant being unavailable for cross-examination for two weeks, I cannot identify any factor under s 117(2A) of the Act which would justify the making of an order for costs in favour of the husband against the mother.

4. Accordingly, I dismiss the application for costs.  I also note that what might also be relevant here is the fact that some interim consent orders have been discussed by the parties and an agreement reached which would provide the father with further time to be spent with the children.  Nevertheless, the other factors are more important and those are the factors I have relied upon in refusing the application.

Interim orders by consent of the parties

1. The report of the Family Consultant is a very comprehensive report and I found it particularly helpful, although it remains untested.  On the basis of that Family Report and all the material that I have read which includes all of the affidavit material of the husband, Ms B and also the report from the Department of Human Services, I am satisfied that it would be in the best interests of the children to make the orders by consent in accordance with the minute provided by the parties for the interim period until the matter returns for trial.  So I propose to make those orders in the terms of the minute of consent orders that has been filed with the Court and ask that the solicitors for the Independent Children’s Lawyer engross those and provide copies to the parties within seven days, so that the father can spend some further time with the children.

2. I note here the changeover is still to take place outside the Town D Police Station, which will be familiar to the children.  Also the orders provide that during the times that the father is spending time with the children, there shall be substantial attendance of Ms B or Mr C or an alternative person nominated by the father and known to the children, in the event that MS B or Mr C are unavailable.

3. I am satisfied it is appropriate to make those orders by consent.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 17 February 2014.

Associate: 

Date:  28 February 2014