Ditters and Jamieson
[2016] FamCA 752
•7 September 2016
FAMILY COURT OF AUSTRALIA
| DITTERS & JAMIESON | [2016] FamCA 752 |
| FAMILY LAW – ADJOURNMENT – where mothers Application in Case dismissed – where mother seeks an adjournment until the conclusion of the fathers criminal proceedings – where father charged with 36 offences against the mother – where these charges arise from him commencing a sexual relationship with the mother when she was under 16 – where father is the step-father of the mother – where mother suspended time with children in 2015 – where mother was concerned about the wellbeing of the children when in the fathers care – where mother relied on the likely hood of emotional trauma for cross-examination – financial stress – where mother asserts potential incarceration of the father will disrupt time children has with father – where court has a positive obligation to control and direct parenting proceedings – where resolution of criminal proceedings is not likely to substantially impact upon the outcome of the Family Court Trial |
| Family Law Act 1975 (Cth) ss 69ZQ, 79ZN |
| McMahon v Gould (1982) 1 ACLR 98 Re K Appeal (1994) FLC 92-461 Theophane and Hunt (No 3) [2011] FamCA 968 |
| APPLICANT: | Ms Ditters |
| RESPONDENT: | Mr Jamieson |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lehmann |
| FILE NUMBER: | CSC | 537 | of | 2015 |
| DATE DELIVERED: | 7 September 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 31 August 2016 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Hadley Family Law |
| SOLICITORS FOR THE RESPONDENT: | Williams Family Law & Self-Rep Centre |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Lehmann Featherstone |
Orders
The mother’s Application in a Case filed 24 August 2016 be dismissed.
The time for filing of the parties’ material provided in orders 5 and 6 of the Orders of Tree J dated 25 July 2016 be enlarged to 4:00pm Friday 4 November 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ditters & Jamieson 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 BRISBANE |
FILE NUMBER: CSC537/2015
| Ms Ditters |
Applicant
And
| Mr Jamieson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 25 July 2016, with the consent of the parties, I ordered that the trial of these parenting proceedings commence on Thursday 8 December 2016 in Cairns, with an estimated hearing time of 6 days. By her Application in a Case filed 24 August 2016, the mother seeks to have that trial adjourned until the conclusion of the father’s criminal proceedings. In that respect it is not contentious that the father is presently charged with 36 offences against the mother, said to arise from him having commenced a sexual relationship with her when she was under the age of 16. The father denies any such criminal misconduct. On 31 August 2016 I dismissed the mother’s application for skeletal reasons then delivered, indicating that I would deliver more fulsome reasons in due course. These are those more fulsome reasons.
BACKGROUND FACTS
These proceedings relate to the parties’ two children, B (born in 2004 and hence presently 11 years of age) and C (born in 2006 and hence presently 10 years of age) (“the children”).
The father and mother first met when the father formed a relationship with the mother’s own mother. In consequence of that relationship, the mother and her siblings went to live with the father, and he became their step-parent. It is a controversial matter in these proceedings as to when the father and mother first commenced their relationship; however it is not controversial that they did indeed, at some time commence a relationship, to which the two children the subject of these proceedings were born.
During the time that the mother was under the legal age of consent, matters were raised with the Department of Children’s Services (“DoCS”) in relation to the mother and father having a sexual relationship, which at the time the mother denied. The DoCS investigation was inconclusive.
The parties separated in October 2010 and initially the children remained living with the father, spending every weekend with the mother. In 2011, the parties agreed that the children would move to live with the mother and spend every weekend, and half of school holidays, with the father. In 2012 the parties disagreed as to whether or not the children should then commence to spend living alternate years with each parent, but in January 2013 the parents agreed to an arrangement whereby the children lived with the mother, but spent three out of four weekends with the father.
In March 2015 the mother began to have concerns about the children’s wellbeing when in the father’s care, and in July 2015 her lawyer wrote to the father advising him that she was suspending the children spending time with him. That then led to the father collecting the children from school without the mother’s knowledge, which led to an application for a recovery order. On 10 November 2015 I ordered that the children live with the mother and that the father be restrained from removing the children from their school. No orders permitting the children to spend time with the father were then made.
It was against that background that the allegations, now taking the form of criminal charges, against the father resurfaced, and the mother made complaint to police in relation to them.
Unsurprisingly, the father brought an application to spend supervised time with the children, which was the application before me on 25 July 2016. On that occasion as I have indicated, the matter was listed for trial, and the father elected not to then pursue the interim application further.
Unusually in this case it is the mother who seeks to adjourn the hearing of her parenting proceedings until after the father’s trial. I will discuss her reasons for doing so in due course.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Section 79ZN of the Family Law Act mandates the court to give effect to principles there enumerated not only in performing duties and exercising powers in relation to child related proceedings, but importantly, by sub-paragraph (b), also in making other decisions about the conduct of child related proceedings.
The principles relevant to these proceedings are principles 2 and 5, contained respectfully in sub-sections (3) and (7). They provide:
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality inform as possible.
Although not in the context of those principles, the Full Court has discussed the adjournment of parenting proceedings to accommodate the outcome of criminal proceedings in the matter of: Re K Appeal (1994) FLC 92-461. After reciting the well-known passage of McMahon v Gould (1982) 1 ACLR 98, at 101 ff the Full Court went on to say at as follows:
In applying those principles in this Court the following additional features of this Court’s jurisdiction in relation to children need to be noted:
(1) The Court has power to make interim orders.
(2) “Final” orders as to guardianship, custody and access are not final in the ordinary sense in which that would be understood in civil proceedings; they can in appropriate circumstances be reconsidered. The subsequent resolution of criminal charges may justify such a course.
(3) Proceedings in relating to the welfare of children in this Court are not strictly proceedings inter partes: see Re P (a child); Separate Representative (1993) FLC 92-376, esp, at pp 79,896-7 where these principles and the authorities were discussed.
(4) Critically, the welfare of the child is the paramount consideration.
In such a situation a trial Judge in this Court would normally have a range of options, namely:
(a) make no orders and adjourn the proceedings leaving the current de facto or de jure situation to govern the matter;
(b) make interim orders and adjourn the matter until the conclusion of the criminal proceedings; or
(c) make final orders.
Where there is a genuine contest between the parties or other matters relating to the welfare of the child (a) would generally be inappropriate.
The question whether the Court should make interim or final orders depends ultimately upon the circumstances of the individual case. However, that decision is to be made solely against the criterion of the welfare of the child. The circumstance alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child’s welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts. Generally a child is benefitted by certainty and regularity in his or her life.
Any perceived disadvantage to the party is secondary to considerations of the welfare of the child. The outcome of the criminal proceedings may justify a subsequent application. In addition, there may be circumstances in individual cases which indicate that interim orders and an adjournment are consistent with the child's welfare. For example, the evidence may indicate that the criminal trial is about to take place and may only involve a short adjournment of the family law proceedings; or the evidence may indicate that the child's current circumstances are satisfactory and there will be no challenge to them or disruption of them pending the outcome of proceedings elsewhere.
THE MOTHER’S ARGUMENTS
Overview
The mother relied upon four principal bases for the adjournment. The first was the likely emotional trauma to her of cross-examination. The second was the stress to her current family which the family law trial would impose, being both emotional and financial. The third was the asserted lack of prejudice to the children the subject of these proceedings if the trial was adjourned, and the fourth was the cost, and potential waste of those costs, to the mother, if the trial were to proceed in advance of the criminal proceedings. I will discuss those in that order.
Emotional trauma of cross-examination
Initially the mother advanced an argument that she was likely to be cross-examined at length in the family law proceedings by reference to the facts which underpin the 36 charges currently pending against the father. However the father’s solicitor pointed out that the issues which were engaged in these proceedings did not require such a cross-examination at all, and he expressly disavowed any intention on the part of his client to do so.
That submission is correct. Central to these proceedings is the question of what, if any, risk of harm the father poses to the children. The Family Report identifies concerns in relation to neglect and poor personal boundaries on the part of the father. For instance the writer reports that the children told her that the father showers with B and has shared a bed with C. There are other instances of alleged poor boundaries as well, for instance the father toileting in the same bathroom in which one or other of the children are showering.
The charges in relation to the mother relate to events all of which are said to have occurred more than some 15 years ago. At its broadest, the mother’s case is that the fact that the father commenced a relationship with her prior to the age of consent is but an early illustration of his poor boundary setting. Except to the extent that they may bear upon a finding as to whether or not that relationship commenced prior to her turning 16, the facts of the various sexual activities do not bear at all upon the family law proceedings. It does not really matter, in the final analysis, whether the father committed one or more of those acts with the mother; the real question is whether he failed to maintain proper boundaries in the parental relationship which he had with her, and plainly if he were to form an intimate relationship of any kind with her, even if it did not extend to sexual encounters whilst that relationship subsisted, that would reflect very poorly upon his capacity to self-regulate.
The court has a positive obligation to control and direct parenting proceedings: see Family Law Act s 69ZQ. In my view not permitting cross-examination in relation to the minutiae of the facts underpinning the offences is likely to be a matter which would fall squarely within that obligation.
I therefore do not accept that the mother will be unnecessarily subjected to a cross-examination by reference to the same matters as are covered by the criminal indictment in these proceedings. Moreover, it follows that the mother’s suggested option of awaiting the criminal proceedings and obtaining a transcript of her cross-examination there, would not be of much, if any, assistance to this court.
Emotional and financial stress to mother and family
The mother is in a relatively new relationship to which there has been born one child to date. She additionally has the care of the parties’ two children. She is financially dependent upon her new partner. It is said that her costs of the trial will need to be funded by some form of loan. The alternative would be for the mother to self-represent.
There can therefore be little doubt that there will be significant financial stress on the mother, and it is likely that that, together with the inevitable attendant stress of being a litigant in proceedings involving one’s children, will impact adversely upon the mother and her family.
However what cannot be overlooked is that the mother is the initiating party in this litigation. Although it is correct, as her solicitor pointed out during the course of submissions, to say that the proceedings were initiated by her because of the need to obtain a recovery order, that order has been made, and the mother is now pressing for final orders that the children neither spend time nor communicate with the father. In reality that is the status quo at the moment, and therefore on an interim basis, the mother has achieved that which she seeks on a final basis. The effect of deferring the trial until after the criminal proceedings, would be to enable the continuation of that status quo, rather than requiring the mother to press her claim to finality.
Whilst it is true that the conduct of the trial will cause stress to the mother both financially and emotionally, the resolution of the proceedings will no doubt benefit her and the children as well. Moreover, it cannot be doubted that in the event that the outcome of the litigation is that the father is permitted to renew his relationship with the children, if that is commenced sooner rather than later, that is likely to be of benefit to them. In saying that I am mindful that in the Family Report dated 29 March 2016 at paragraph [80] it is noted “[The mother] acknowledge B and C have a “pretty good” relationship with [the father]” although at paragraph [83] the writer went on to say that she thought the children had adjusted to not seeing the father. Plainly if their relationship with the father can be experienced in an environment which adequately mitigates any risk which he may pose to the children, it is likely to be of benefit to them.
No prejudice to children in adjournment
The basis of the mother’s argument here was that it is possible that the criminal proceedings against the father may be resolved as early as April or May of 2017. It was said that the delay of that period would not prejudice the children, but conversely, if time with the father were to commence in consequence of the trial in December, and the father were only some months later found guilty and incarcerated in his criminal trial, the chop and change of renewing their relationship with the father, only to have it suspended during a period of his jailing, would be disruptive.
The genesis of that submission is, of course, that the criminal proceedings may come on quickly. However in the affidavit of the mother’s solicitor filed 24 August 2016, I note that:
·The father’s criminal solicitor has told her that he intends to plead not guilty;
·The father’s criminal solicitor had only received the Crown papers on 17 August 2016 or shortly beforehand;
·The sittings fixtures for the District Court in Cairns for 2017 have not yet been established and are not expected to be available until late October or early November of this year;
·Enquiries of the Assisted Registrar of the District Court suggest that matters can be listed for trial quite quickly and within three months of an indictment being presented.
However of course there are a great many matters that may cause a criminal trial to proceed much more slowly than at maximum speed. One might expect in a case such as this, where there is apparently a conflict between the mother’s contemporaneous evidence at about the time of the alleged offences (to the effect that she denied having sexual relations with the father) on the one hand, and her evidence now that indeed there were sexual relations taking place at the time, that submissions may be made to the Crown with a view to having the indictment withdrawn or stayed on the basis that there is no reasonable prospect of conviction. Likewise, there may be submissions advanced in relation to the Crown’s prospects of success in relation to specific charges within the indictment. Further, given the large number of charges, and apparently the prospect of some additional witnesses being called for the Crown other than the mother, the trial would seem to be one requiring a not inconsiderable amount of time to be heard. In any event, even if the father were convicted, it is not inconceivable that he may wish to appeal any such conviction, given the conflict in the mother’s respective versions over time.
Finally, experience of the court in relation to Cairns matters where the family law trials have been deferred pending criminal proceedings, does not support the optimistic view of the mother’s solicitor that the proceedings will be resolved within a matter of months, although that is a matter which I give little weight.
As to the alleged prejudice to the children of commencing to spend time with the father, only to have it cease again upon incarceration, there was nothing in the material before me which would enable me to conclude that incarceration is the inevitable outcome of a conviction for the father, even if found guilty on all of the charges. Certainly the father’s solicitor did not concede, when pressed by me, that incarceration was inevitable. As I understand it, the father is a first offender in relation to such charges, which are now all in excess of 15 years old, and there is no suggestion that he has offended in the meantime. Moreover, as an adult he and the mother continued to have a relationship (if it be the case that it commenced prior to her being of age) which bore two children. The father has a number of other dependents who rely upon him for their sustenance. One could readily envisage that, even if incarceration is part of the ultimate sentence imposed upon the father, there may be good reason as to why it should be wholly suspended. Therefore I am not persuaded, if the December trial in this court were to see the father recommence a relationship with the children, that it would necessarily be suspended if he was thereafter convicted in the criminal proceedings.
Further, I am not persuaded that, even if it were suspended again, that would necessarily be prejudicial to the children. On one view it would not be prejudicial but beneficial: they would have re-established a relationship of some kind with the father, which would provide a further foundation for its renewal after his release from any jail time.
Cost and possible obviation of need for family trial
The mother argues that if the father is convicted in the criminal Courts, that may obviate the need for a trial in the Family Court, in that the father may not pursue his application. The first point to note is that in fact it is the mother who is the initiating party in these proceedings, and whilst true it is that by his Response the father seeks orders in his favour, there would still need to be a trial of the mother’s application.
The second point is that it is by no means clear that the father would not wish to maintain a relationship with the children if he were convicted. There is no evidence to that effect, and to so contend is mere speculation.
Alternatively the mother says that the length of trial may be significantly reduced if the criminal trial was first. Unfortunately I do not think that is a correct analysis. The role of the court in proceedings such as this is largely one of prospective risk assessment. The case against the father is that he has poor personal boundaries, such that it should be assessed that he presents an unacceptable risk of harm to the children. An analysis of minutiae of the events surrounding the 36 alleged offences is, as I have indicated, unlikely to be part of the Family Court proceedings. It is difficult to see that a conviction per se of the father for one or more of the offences would substantially reduce the length of the Family Court proceedings.
Finally the mother says that the outcome of the Family Court proceedings could be rendered nugatory if the father were convicted. By this I understand her to mean that either, firstly, if the father was incarcerated there would necessarily be a hiatus in him re-establishing a relationship with the children (if that were the outcome from the Family Court proceedings), or alternatively, that any subsequent conviction may be a basis for revisiting the outcome of the Family Court proceedings. The first point to observe is that those arguments only have any force if the outcome of the Family Court proceedings is in fact to see the father re-establish a relationship with the children. If the outcome is to deny him that opportunity, based upon an adverse prospective risk assessment, then it is difficult to see that his conviction in the criminal proceedings would require revisiting of that outcome. Likewise, given the different standards of proof between the two courts, even if the father were acquitted of all of the charges, that may not justify a revisitation of the Family Court proceedings outcome either.
The second point that should be made is that it is quite possible, even if the Family Court trial results in a re-establishment of a relationship between the father and the children, that the suspension of that during any actual incarceration of the father would not render that decision nugatory. It may not, of itself, be sufficient to justify re-litigation.
The third point which should be made is that the matter was listed for trial in the course of the hearing of the father’s application for interim orders to recommence spending time with the children. That application was not then pressed when the trial was listed. It is nigh inevitable, if the trial were now to be adjourned, that interim application would then be re-agitated. If the court were to be of the view that the length of time between that interim hearing and any criminal trial was likely to be lengthy, it may be that in any event cross-examination might be permitted, as Benjamin J did in Theophane and Hunt (No3) [2011] FamCA 968. So it is by no means certain that adjourning the trial would affect any savings for the mother; ironically it may in fact lead to an increase in her total costs.
Matters relied upon by the father
In addition to his arguments discussed above, the father did point out that the order for trial was made by consent on 25 July 2016, after the matter had been stood down to enable the mother to consult with her solicitor as to whether or not the proposed course was agreeable to her. True it is that the parties had no forewarning of the court’s offer to list the matter for trial, rather than proceed with the interim hearing, but it cannot be said that the mother did not have the opportunity to take advice in relation to the proposal. Whilst I note this matter, it is not one to which I give much weight.
The other matter relied upon by the father’s solicitor was that it is the father who stands to be potentially imperilled by submitting himself for cross-examination prior to the criminal proceedings, and yet he does not seek to have the trial delayed on that basis. Indeed it has to be said that most of the cases where the deferral of the trial pending the outcome of criminal proceedings has been sought, it has been at the behest of the accused, rather than the complainant.
Evaluation
Weighing those matters in the balance does not tell in favour of the adjournment. Particularly:
·I am not satisfied that the resolution of the criminal proceedings is likely to substantially impact upon the outcome of the Family Court trial;
·I am not satisfied that the resolution of the criminal proceedings is likely to shorten the length of the Family Court proceedings to any significant degree;
·I am not satisfied that permitting the criminal proceedings to conclude first, is likely to affect any significant savings of costs for the mother;
·I am not satisfied that if the father is convicted in the criminal proceedings, it is likely to obviate the need for any trial of the Family Court proceedings;
·Whilst the looming family law trial is likely to be a source of financial and emotional stress for the mother, the resolution of those proceedings is likely to be of net benefit to both her and the children;
·Given that the father is not presently spending time or communicating with children under any circumstances, it is desirable to, as soon as possible, conclude on a final basis whether that should continue, or whether the relationship should re-commence;
·Whilst it is possible, I am not persuaded that the length of time of the adjournment is likely to only be a few months.
CONCLUSION
For these reasons I dismissed the mother’s Application on 31 August 2016.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 31 August 2016.
Associate:
Date: 7 September 2016
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