Donalds & Donalds (first day)
[2021] FamCA 521
•15 July 2021
FAMILY COURT OF AUSTRALIA
Donalds & Donalds (first day) [2021] FamCA 521
File number(s): MLC 11505 of 2020 Judgment of: BENNETT J Date of judgment: 15 July 2021 Catchwords: FAMILY LAW – PARENTING – first day of trial – young children – parties reside 1,000 km apart – mother resists returning children to Melbourne - possible need for a split face to face hearing between Melbourne and Newcastle in order to do justice to the case. Legislation: Family Law Act 1975 (Cth) Cases cited: Knibbs & Knibbs[2009] FamCA 840
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
Number of paragraphs: 75 Date of hearing: 15 July 2021 Place: Melbourne Solicitor for the Applicant: Joseph David Lawyers Solicitor for the Respondent: Ms Donalds In person Counsel for the Independent Children's Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC 11505 of 2020 BETWEEN: MR DONALDS
Applicant
AND: MS DONALDS
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
IT IS DIRECTED THAT:
1.The Independent Children's Lawyer be responsible for serving a copy of this Order on Victoria Legal Aid requesting an immediate assignment of the matter to the mother’s section 102NA lawyer for the purpose of these proceedings.
IT IS ORDERED THAT:
2.Within 7 days the mother communicate in writing to the independent children's lawyer and the solicitor for the applicant father the names of the witnesses who she proposes to call in support of her case at the final hearing and whether any of those witnesses will be confined to the evidence which has already been filed and served on her behalf and if so the details on affidavit for which she intends to rely.
3.This matter be set down for final hearing before me to commence on 24 August 2021 at 10.00 am.
4.The matter be adjourned for further directions before me on 27 July 2021 at 9am.
5.Pending the final hearing commencing on 24 August 2021, paragraph 2 of the Order made by Judge Carter on 21 December 2020 be stayed for so long as the mother’s notice of appeal filed 7 July 2021 remains pending and not determined by the Full Court of this Court.
6.Until further order each parent be at liberty to record the communication between the father and the children X born … 2019 and Y born … 2021 (“the children”), or either of them, provided that the parent who records any communication record the entire communication in that session and both parents should be in a position to produce for inspection by all other parties to the proceedings all of the recordings which he or she has taken of communication between father and the children pursuant to orders made 21 December 2020.
7.The mother’s application for removal of the Independent Children's Lawyer be and is hereby dismissed.
8.The interim defended hearing before Senior Registrar Hoult on 30 July 2021 be and is hereby vacated.
9.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 DIRECTED THAT:
10.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
11.My Associate distribute the document “FCoA FCC Practitioner and Litigant Guide to Virtual Hearings and Microsoft Teams” to the parties in relation to the protocols of appearing by video link.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donalds & Donalds has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
These parenting proceedings concern X who is two years old and Y who is nearly six months old. Today is the first day of hearing following the transfer of the matter from the Federal Circuit Court of Australia and I have allocated a final hearing commencing on 24 August 2021 in this court. I have not decided where the court will sit or what would be a reasonable estimate of time for the hearing, although, I suspect that the hearing will require more than the five days currently allocated. I have adjourned the matter to 27 July 2021 at 9:00 a.m. before me for further directions to ready the matter for trial.
Appearances and representation
Today the mother appeared in person. Mr David, solicitor, appeared on behalf of the father who also participated in the hearing by video. Mr Turner, of counsel, appeared for the Independent Children’s Lawyer.
Yesterday an email was sent by the mother to my Chambers. I did not see the email but the mother acknowledged that my Chambers provided her with a fact sheet for a McKenzie friend which read:
A Mckenzie friend is not a party to the matter; they cannot be given any file related information.
A McKenzie friend is not appointed by the Court, they can be someone chosen by the person applying for the McKenzie Friend.
A McKenzie friend is not the same as a Case/Litigation Guardian.
A McKenzie friend is a person who may provide assistance to a litigant in the following ways:
• Sits next to the litigant at the bar table
• Handles or catalogues documents or exhibits
• Makes quiet suggestions to the litigant as to how best to conduct the case
• Generally helps the litigant present the case in the Court
• Does the above without disrupting the proper conduct of proceedings (see Lindenmayer J in Watson and Watson [2001] FamCA 1470)
An important limitation is that a McKenzie friend may not act as an advocate for the litigant
The mother did not request a McKenzie friend at the hearing today. However, for the first few minutes of the hearing a woman, whom I assume to be the maternal grandmother, walked back and forth behind the mother and around the kitchen holding cooking utensils and prompting the mother on what to say and how to conduct aspects of her case in a loud voice which could be easily heard.
When I noticed that the parties’ older child, X (aged two years) was standing next to the mother, I required the mother to remove X immediately. The mother appeared to walk off to her right taking the child with her. Thereafter, the voice of the other woman could be heard from that direction still making audible suggestions to the mother about presentation of the mother’s case. I have directed that my Associate send the parties the document “FCoA FCC Practitioner and Litigant Guide to Virtual Hearings and Microsoft Teams” in relation to the protocols of appearing by video link. Notwithstanding what is said in the Guide, a party before me is required to keep their camera on and to be visible whist they are participating in the hearing unless I otherwise direct. Our legislation prohibits a person under 18 years of age being present at a hearing without leave of the court. X’s presence was inappropriate for the additional reason that, pursuant to the Order made 21 December 2021 (as amended by the Order of 9 June 2021), his only form of communication with the father has been by telephone and Zoom, an electronic audio visual platform. The father’s image on the mother’s screen would be easily identifiable by the child without the child being able to talk to the father and understand why he could not do so.
History
It is necessary to provide some historical context to the matters decided today. I have drawn extensively from Judge Carter’s reasons. None of this history represents a finding of fact by me.
The mother is 40 years old. She has worked as a public servant for 15 years and is currently on maternity leave.
The father is 43 years old and self-employed as a tradesperson.
The parents met on an online dating service through the DD Church in 2011. The parents were married in 2012. The father was 33 years old and the mother was 31 years old and her child from an earlier relationship, Mr B, was 12 years old.
X was born in 2019.
The parents separated on 16 October 2020. At that time, the mother obtained an Intervention Order against the Father on an ex parte basis, which excluded him from the home at Suburb CC, Melbourne. X was 18 months old and the mother was pregnant with Y. The father has not seen X face to face since separation and has never seen Y in person.
While the Intervention Order initially excluded the father from the home, that was subsequently varied on about 20 October 2020 to allow the father to return to the home as the mother, by then, had vacated it. The Intervention Order proceedings have concluded, with final orders being made by consent on 20 November 2020 without admission, pursuant to which the mother now has a two-year Intervention Order in place naming herself, X and her adult son as protected parties.
The father initiated proceedings in the Federal Circuit Court of Australia in Melbourne on 22 October 2020. It is his case, in the documents that he filed at that time, that he was very involved in X’s care and ultimately he would like, in due course, an equal share care of X. The father asserted that he has a warm and loving relationship with X.
At the time that the father filed the Initiating Application, he was not aware that the mother had or was about to relocate to New South Wales. However, he understood that might be what would occur and he expressed considerable concerns that relocation would significantly impact on X’s relationship with him, and of course, on his relationship with the new baby, Y. The father strenuously denied that there was any basis for the Intervention Order and denied all allegations of violence, abuse, intimidation and coercive and controlling behaviour.
Judge Carter records that there were attempts made to serve the mother on a number of occasions. According to the affidavit of the process server there were some difficulties in that it appears that the Mother was somewhat unco-operative with the process server and refused to accept service of the documents. The matter first came before Judge Carter in the Federal Circuit Court on 4 November 2020. The mother appeared in person without a lawyer and advised the Court that she had recently moved interstate but refused to disclose her address. Judge Carter records, it was her understanding, that the mother moved interstate after the father had issued proceedings and after she knew that there were attempts being made to serve her with the father’s proceedings. The mother maintained that she moved interstate because she had to, to flee family violence. Judge Carter recorded that the mother “says that there are criminal matters on foot that she felt needed to be dealt with first. I understand at that time what she was referring to was the Intervention Order application which, as I said, has now been finalised. She also said that she had not been properly served.” The mother subsequently notified the court of her address in Suburb D, New South Wales.
Judge Carter made various orders on 4 November 2020 including requesting the appointment of an Independent Children’s Lawyer. In due course, Sally Nicholes of Nicholes Family Lawyers was appointed. The parents were required to participate in a Child Inclusive Conference and an order adjourning the matter to 11 December 2020 for an interim defended hearing was made.
The matter could not proceed on 11 December 2020 as the Department of Health and Human Services (“the Department”) had not yet provided a response, and ultimately the matter proceeded before Judge Carter on 16 December 2020. Judge Carter records that:
12. I have carefully read all the material that has been filed by the parties in these proceedings. The Mother’s material sets out a litany of complaints about the Father, and sets out that she was, she says, subject to violent and controlling behaviour throughout the relationship. Part of the Mother’s affidavit focuses on the lack of intimacy between the parties and unhelpfully it outlines aspects of their sexual life that left her dissatisfied.
13. Much of the mother’s material is very critical of the Father, asserting not only that he was very violent and abusive but he was also aggressive, manipulative, that he can be deceptive, at times lazy, verbally abusive, financially and socially controlling, a bully and a liar and that he has uncontrollable anger issues. She says that he subjected herself and Mr B to frequent taunts and threats, belittling them and causing them to be on alert and eroding their sense of self and security.
14. She says both she and Mr B have subsequently lodged Victims of Crime applications to assist with the cost, for instance, of counselling for them. She says that she and Mr B have had to endure what she says is “unrelenting torture” at the hands of the Father, and she wonders in her material when the abuse will start on X. She also sets out that the Father had expressed angry thoughts, and that she has some concern about that because thoughts are what produce our reality.
15.The Mother also sets out that she was raped by the Father in 2016. I note that she has only recently reported that to the police, on 3 November 2020. That was the day before the first Court date, and as I understand it, at about the same time that the Mother appears to have signed a 12 month lease on a property in New South Wales.
16. There are further criticisms and observations that the Mother makes including, that the Father has at times taken very strong painkillers due to an ongoing back issue, that he has taken her prescribed sleeping tablets in the past and that he has a criminal history including burglaries and driving offences.
17. It is her case that the Father has significantly exaggerated his role in X’s care. She says that he was a disinterested father and that he had left X unattended on occasion when he was meant to be watching him, that he has been neglectful of X and that that has caused X injury in the past.
18. The Mother says that accordingly, the time between X and his Father needs to be supervised. However, at the time that the matter proceeded before me, the Mother had not made any enquiries as to potential contact centres or private supervisors, or the costs, availability or delays in those services. She did suggest that it would be possible that her mother, for instance, could provide supervision.
19. The Mother says that she knows that a father is important in a child’s life, but she says that she cannot allow the children to be, as she says, “destroyed” by him with his abuse, neglect and character assassination.
20. She says that she fled to New South Wales to be closer to her family and friends, all of whom are in New South Wales. She describes herself as being isolated and alone in Victoria and that she is now much happier living within driving distance of her support network. She says she has entered into a lease for 12 months and she has now furnished that home, purchasing whitegoods and furniture for herself and the children. She says that it will cause her significant hardship if she has to cancel that lease.
Judge Carter continued:
24. There is also an affidavit from the maternal grandfather, who he confirmed that he himself had seen the Father be demeaning to Mr B, observed the Father being difficult and uncommunicative and that he became angry and upset when the maternal grandfather sought to counsel the couple. He also confirmed that the Mother had advised him in 2016 of the alleged sexual assault. He describes the father as “a Control freak” and “a Monster ”.
25. The Mother also has filed an affidavit from her niece, who has confirmed that the Father has attempted to communicate with her on a number of occasions to speak with the Mother or to find out about the Mother, subsequent to the making of the Intervention Order.
26. In terms of the Father’s material, as already indicated, he strenuously denies all allegations of family violence and control, abuse, manipulation, gas-lighting and deceit – indeed all of the criticisms that the Mother makes of him. He says that he has been an engaged, loving and devoted Father. He says he has done his best with Mr B. He denies that he belittled Mr B and denies ever being less than vigilant with X and the care of him.
27. The Father says that the criminal history to which the mother refers is very historical. He was caught for unlicensed driving in 2001 and there was some burglary and related charges from 1997 and 1998 when he must have been around 19 or 20.
28. He denies the allegations of financial control and says that the parties had separate bank accounts and the Mother had complete control over her own funds. I note in the Mother’s material she acknowledges that they maintained separate accounts and my understanding is she has amassed some $19,000 in savings. Indeed, it may have been more than that at the time the parties separated, as the Mother has now funded her move to New South Wales, purchased furniture and whitegoods and secured a lease. Currently, according to her material, she has some significant savings although she says that they are earmarked already for dental work and providing care for the parties’ new baby.
29. The parties then attended upon a Family Consultant for an assessment pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”). That memorandum provided little assistance and guidance in terms of what arrangements should be made for X’s care on an interim basis. The Family Consultant confirmed that there appeared to be very few options for time between the Father and X and the Father and the newborn baby whilst the Mother remains living interstate. It was also observed, and is quite obvious, that the relationship between the parents is currently very poor.
30. As already outlined, on 11 December 2020 when the matter was before me, the Department had not provided a Response to the Notice of Risk and the matter was adjourned to 16 December 2020. The Department subsequently provided a Response and in that they confirmed that the Mother maintained her position that the Father subjected her to family violence on a daily basis and that he was controlling and domineering to her and to Mr B. The Father also maintained his denial of those allegations.
30. The Department noted that they were closing involvement in the matter and they had no protective concerns with respect to the Mother’s care of X. The Department assessed that family violence had been present in the marriage and they assessed that that had been perpetrated by the Father against the Mother. The Department said that “Safety and stability are core needs that X requires” to ensure his “psychological safety”. The Department said that the contact between the Father and X should be “monitored”, given the discrepancy in the parties’ accounts of the role the Father played in his life and as to the discrepancies in their allegations of family violence. The Department did not set out what they meant by “monitored”
[…]
49. It is abundantly clear I must also consider questions of practicality, and I gave the parties opportunities to provide the Court with further material to address those considerations. The Mother says that she cannot return to Victoria. That is a proposition that she describes as “ridiculous” in her affidavit material. She says that Victoria and, particularly, the house in which she was previously residing, hold horrific memories for her. She says that her pregnancy is a high-risk pregnancy, it is an IVF pregnancy and that she has an autoimmune disease.
50. She says the baby is small and that the effect on her of stress is significant and could be, potentially, very dangerous for the pregnancy. She has provided a short medical certificate from Dr E, who states that this is a high-risk pregnancy with a low foetal birth rate which requires constant or frequent monitoring by the obstetrician. The doctor reports that the Mother is under an extreme level of anxiety and stress, which is affecting her endocrinal problems, and the doctor strongly advised against the Mother travelling at this time.
51. The Mother also says that it is not practicable for her to return to Victoria as she has no supports and no home here. Conversely, she says the Father can move and that he has previously expressed a strong interest and desire to move interstate. She says that his employment is transportable and he would be able to move. Those are, no doubt, matters that will be fully explored and ventilated at a Final Hearing. I note that the Mother is currently on maternity leave, but she describes in her material that she has a stable job to return to, but she anticipates she will not do that for the next two years.
52. However, she also says that she is considering being able to work from home. The Mother has $19,000 currently in savings. She says she needs this to meet urgent dental work that she needs to undertake and to meet the costs of caring for the new baby. I do not have any independent evidence from a dentist either about the necessity of the dental work nor as to the costs of same. The Mother says that she has no family or supports in Victoria. I note, however, that her son Mr B remains living in Victoria. I note further that one colleague and one friend have filed an affidavit on her behalf in these proceedings.
53. Whilst the Mother does not actually set out what support is available to her in New South Wales in terms of emotional or practical support, I accept that the maternal grandmother and potentially other members of the Mother's family provide some assistance to her. However, given the recent COVID-19 outbreak in New South Wales, I am unsure how much practical support will be able to be provided in the coming weeks.
54. The Father has indicated that he would vacate the home that the parties were renting and allow the Mother to move back in there with X and both children. However, the Mother is adamant that she would not be prepared to live there. She says that that house holds many significantly upsetting memories for her and she would not be comfortable living there. That is a matter for her. She does, however, have some funds and some income. In my view, she would be able to meet the costs of finding accommodation for herself and housing herself and the children upon her return.
55. The Mother says that she would endure a period of being homeless if she was required to return. I do not accept that that is a necessary consequence of an order for return, given that there would be a significant delay, and an order for return is not being sought until 31 March 2021. Whilst the Mother will no doubt be very busy between now and then – particularly in attending to the parties' newborn child – in my view, that would give her sufficient time to locate and obtain rental accommodation for herself and the children.
Judge Carter made orders on 21 December 2021 which, inter alia, required the mother to return to reside in Melbourne by 31 March 2021, which would have been at least a month after the birth of the baby, Y. The orders also included an order for X to have supervised time with the father on six occasions and for that time to then progress to unsupervised time for two-hour periods. Judge Carter provided the parties with an expedited trial date on 9 June 2021 and made orders for the preparation of a Family Report.
The mother filed a Notice of Appeal on 19 January 2021.
Y was born in 2021.
On 8 February 2021, the mother issued an application seeking a stay. The mother’s request for a stay of the return order was supported by the Independent Children’s Lawyer. Judge Carter ordered that paragraph 2 of the Order made 21 December 2020 be stayed pending appeal.
The mother’s first Notice of Appeal was dismissed by Strickland J. on 8 April 2021.
The mother’s second Notice of Appeal was filed on 29 April 2021.
On 4 May 2021 Mr F, Regulation 7 Family Consultant (“the Family Report writer”) conducted assessment interviews with the mother and father and observed the children with the mother, presumably all by audio visual link. The father was not observed with the children.
The Family Report is dated 5 May 2021 and was released on that day. The family report writer notes:
36. Ms Donalds stated she decided to finally separate from Mr Donalds in October 2020 when she was seven weeks pregnant with Y after he pushed her. She stated, ‘he shoved me hard and it hurt – I can’t believe he did it to assert his control over me – he said I got in his way.’ As IVF pregnancies are delicate, Ms Donalds stated she decided not to stay in an abusive relationship any longer. She was worried that he might start on being abusive to X as well.
37. She explained that she became alarmed when Mr Donalds said to her ‘do you ever feel like you’re boiling with rage with X?’ Ms Donalds stated she was worried because she knew about his violence from his adolescence and from his father. Consequently she decided to leave when Mr B finished his last assignment. He went to live with friends while she packed a hire car and went to Suburb D.
38. Mr Donalds stated he saw a lawyer after Ms Donalds disappeared with X and he was served with an Intervention Order. He explained the Court appearances and Ms Donalds’s appeal against the Judge’s decision for her to return to Melbourne. Mr Donalds believes she is grasping at straws to find reasons why she can’t return to Melbourne.
39. He stated she first said she had no supports, before then saying she had mental health trauma and X is a special needs child. In addition she said she couldn’t travel because of the pregnancy. Mr Donalds stated he had no say in Y’s first or hyphenated surname and has only seen six photos of him. She refuses to let him see Y when he has screen time with X.
40. Mr Donalds believes it be an uphill battle for him to have a relationship with X and Y if Ms Donalds remains in Suburb D. He explained that her family hate him and that her mother has never been a part of her life and now is helping care for X and Y. He stated, ‘they’re going to poison my boys against me.’ He stated that he wants to have an amicable relationship with Ms Donalds and jointly raise the boys with her.
41. Mr Donalds stated that if Ms Donalds is allowed to stay in Suburb D, he doesn’t have any guarantees of starting his business in a new environment where he doesn’t have any connections or networks. He explained that it has taken him twelve years to build the business and he has five to seven years of contracting work planned ahead.
[…]
43. Ms Donalds thinks his speech delays are because of Mr Donalds’s negligence in allowing X to fall and have head injuries on two occasions. She is adamant she is not returning to Melbourne. Ms Donalds believes Mr Donalds should either move to the Suburb D area or visit the boys from Melbourne. As she believes he does not know how to look after X properly due to his falls, she would like his time with him to be supervised. Due to Y’s young age, she stated there is no other option than limited supervised time
44. Mr and Ms Donalds are unable to communicate with each other about X and Y, with Ms Donalds, in particular, believing that Mr Donalds is a risk to the children. While Mr Donalds stated that the separation came as a surprise, Ms Donalds stated it had been an option ever since they separated under the same roof in 2016. They were able to work as a couple for the pregnancies with X and Y, with Ms Donalds feeling she couldn’t cope with being in the marriage any longer once she was pregnant with Y.
Of the children, the Family Report writer observes:
11. X was exposed to conflict between his parents and Y was exposed in utero. Child protection investigated at the time of the separation and assessed that X was exposed to his parents’ conflict. They closed the matter because Ms Donalds moved to Suburb D, with there being no possibility of further conflict.
12. X has been assessed by a paediatrician as having a severe expressive speech and self-help delay and has aspects of Autism Spectrum Disorder. Ms Donalds believes his condition is because he hit his head on two occasions when he was in Mr Donalds’s care. Mr Donalds stated the two incidents were accidents. There are no medical reports regarding the cause of X’s speech delay and aspects of autism.
The Family Report writer’s evaluation is:
48. The critical issue is this matter is whether it will benefit the children to return with their mother to Melbourne or whether their interests are best met living with their mother in Suburb D. If they remain in Suburb D, where their mother has family support, they are likely to grow up with a distant awareness and attachment to their father. Mr Donalds has made it clear that he is reluctant to move to Suburb D, both for financial and personal reasons. However he does not want to lose his connection to X and he wants to know Y.
49. Mr and Ms Donalds have outlined very different accounts of the nature of their marriage, with Mr Donalds claiming their differences and marital problems were within the realm of the ups and downs experienced in most marriages. He didn’t talk about them being separated under the one roof from some time in 2016 until the beginning of 2017. Ms Donalds stated there was an understanding between them that she would fully leave the marriage when it was least disruptive for Mr B.
50. However Mr B developed a positive bond with Mr Donalds that led to her re-evaluating her decision. It was not clear how she was able to emotionally move from wanting to separate in the future to proceeding with IVF treatment to have two children to Mr Donalds. Mr Donalds thought they had overcome the bad period in their marriage and were working toward creating a family.
51. Ms Donalds has stated that she left because of the subtle cumulative effect of the various forms of abuse that had built up for a number of years. Mr Donalds was surprised by her decision to leave and further surprised when he was served with an Intervention Order Application outlining the various abuses. He was not sensitive to the negative effect his treatment of Ms Donalds was having on her, as for the majority of the time the abuse was not overt in his eyes.
52. Since the separation Ms Donalds has become emboldened to strengthen herself emotionally through counselling and family support and is adamant she will not return to Melbourne and be near Mr Donalds.
53. While she has moved to Suburb D to nurture her own self, she has paid little attention to whether X and Y need to grow up with a meaningful relationship with their father. It is surprising that she has done so, as she is aware of how important it has been for Mr B to have a father figure in his life. Regardless of what she thinks of Mr Donalds, she needs to give X and Y the chance to develop their own connection to their father independent of their mother’s views.
54. Although Ms Donalds believes that Mr Donalds is a threat to X based on him being negligent when X had two falls, I don’t believe this is the case. X knows his father through regular FaceTime calls and he would adjust easily to being with his father again. If Mr and Ms Donalds were living in the same area, I believe Mr Donalds should commence with short periods of unsupervised day time contact with X on weekends and eventually move to all day contact on both Saturday and Sunday on alternate weekends. His capacity to move to overnight periods with his father is likely to be affected by his developmental delays and will need further reviews.
55. Mr Donalds would need to meet Y for short periods at changeovers when X goes into his father’s care. Y needs to develop a familiarity with his father and to see his father with X.
56. Mr Donalds is not able to go through this process if he remains in Melbourne and Ms Donalds remains in Suburb D. The decision regarding where Ms Donalds and the children live is one to be made by the Court.
The mother’s second Notice of Appeal was dismissed by Strickland J. on 8 July 2021.
Mother’s Application in a Case filed 13 July 2021
The mother filed an Application in a Case on 13 July 2021 in which she seeks interim orders. The orders sought are intermingled with, or expressed as, submissions. I will recite paragraphs of the mother’s application and explain how I have disposed of that part of the application. I do not want to encourage the mother in this style of drafting. Henceforth she should be disciplined and succinct or risk the application being struck out because it does not specify with precision the order sought.
Starting with the first paragraph of “Orders Sought”:
1.The children remain permanent residents in New South Wales with the mother who is a NSW resident with 17 family, 35 friends and 8 professional supports for X with special needs and self with severe PTSD and Depression diagnosed. Also considering the increasing outbreaks and lockdowns of COVID 19 in both states the high risk of movements with the mothers autoimmune disease in particular.
I am not making any final orders today and, as explained directly below, the father and the Independent Children’s Lawyer are not seeking that X and Y be brought into Victoria immediately.
The next order sought by the mother is:
2.Stay on orders 9 June 2021, made by Judge Carter in the Federal Circuit Court, pending appeal and until final trial where all evidence is properly aired, vented and tested.
The Order made by Judge Carter on 9 June 2021 provided:
Transfer to the FCoA
1.Pursuant to section 39 of the Federal Circuit Court Act 1999 (Cth), these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed on a date to be advised.
Time and Communication
2.The child Y born … 2021 (“Y”) spend time with the Father as follows:
(a)for the first half hour of the time the child X born … 2019 (“X”) spends with the Father pursuant to paragraph 3 of the interim orders made on 21 December 2020; and
Order amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules (2001) (Cth)
(b) by participating in a Zoom meeting with X where practicable, with the Mother to facilitate the calls.
Psychological assessment
3.Both parties undergo a psychological assessment with a psychologist nominated by the Independent Children’s Lawyer with each party to be responsible for their own costs associated AND IT IS REQUESTED THAT Victoria Legal Aid meet the costs of the Mother’s assessment if she is in receipt of a grant of aid (and with the Mother to be responsible for the costs of same in the event that she is not in receipt of a grant of aid).
Costs
4.The Applicant’s [father’s] costs of today be reserved.
THE COURT FURTHER ORDERS BY CONSENT THAT:
5.The ICL be permitted to provide the following documents to the psychologist undertaking the assessment of the
Motherparties:(a) copies of all affidavit material filed by the parties;
(b) copies of the orders made on 21 December 2020 and these orders; and
(c) copy of the Family Report prepared by Mr F dated 5 May 2021.
6.The parents be permitted to communicate by email and text message in relation to matters concerning the children.
AND THE COURT NOTES THAT:
A. The matter is currently listed before Senior Registrar Hoult and that upon being transferred to the Family Court of Australia the return date on 30 July 2021 at 10:00am before the Senior Registrar be administratively listed for interim defended hearing in the Family Court of Australia.
B.The Mother has previously appealed the interim orders dated 21 December 2020. Her appeal was dismissed on 8 April 2021. A stay of paragraph 2 of those orders requiring the Mother to return to Victoria with the children was ordered until this day, 9 June 2021.
Order amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules (2001) (Cth)
C.The Father and the ICL do not oppose the Mother’s application for an adjournment in circumstances where paragraph 2 of the 21 December 2020 orders requires her to return to Victoria with the children.
D.Neither the Father nor the ICL intend to pursue an application to enforce paragraph 2 of the 21 December 2020 orders so long as the Mother complies with that paragraph 2 of the 21 December 2020 orders on or before 30 July 2021.
[…]
On 21 December 2020 it was ordered, amongst other things:
1.The child X born … 2019 (“the child”) live with the Mother.
2. The Mother return the child to live in the metropolitan region of Melbourne, Victoria by no later than 31 March 2021.
Accordingly, by the notations to the Order of 9 June 2021, the father and the Independent Children’s Lawyer say that they will not pursue enforcement of the order that the mother bring X back to Victoria to reside in metropolitan Melbourne until 30 July 2021.
This is the third Notice of Appeal filed by the mother. I understand that the mother’s first two Notices of Appeal were dismissed by Strickland J. This third appeal is expressed to be “a conditional appeal made under duress, on the grounds that the court is able to establish Jurisdiction and/or Authority”. The mother contends that the order made by Judge Carter on 21 December 2020, is “illegal”, because:
[…] The evidence is crystal clear that there is no Head of Power given by the Monarchy (Her Majesty), which is what the Commonwealth of Australia still rules under, to make such orders. Which means that there is no power given to the Constitution to enact any such laws. This (first) appeal is yet to be heard.
In the third Notice of Appeal, the mother has drawn 20 grounds of appeal in seven pages containing 346 single spaced lines of small type. The mother references the Magna Carta at paragraph 8 (line 145). I don’t know when the third Notice of Appeal will be listed before the Full Court for hearing.
The father and the Independent Children’s Lawyer had earlier agreed that they would not press the mother’s return to Melbourne because Judge Carter had set the proceedings down for hearing before herself to hear on 9 June 2021 (3 days). I was informed that, had the final hearing which I have fixed to commence on 24 July 2021 been a long way off, the father and the Independent Children’s Lawyer would have pressed for the mother to bring the children back to Victoria. However, as I will start the hearing in five weeks, the father and the Independent Children’s Lawyer do not oppose the stay sought by the mother.
I will order the stay, on an unopposed basis, for as long as the third appeal is pending. A stay of Judge Carter’s order under appeal does not prevent me from making a similar order.
The next order sought is:
7.I request an adjournment to allow sufficient opportunity and time to find suitable representation, given that my late lawyer has withdrawn so close to the new hearing date, that was brought forward from the 30 July 2021 to 15 July 2021. If the proceedings should continue failing to allow leave for adjournment, the following must be considered.
The mother has had two s102NA lawyers. From 11 March 2020 to 1 April 2021 Danielle Webb acted for the mother and thereafter Mr Knight from Nickita Knight acted until 6 July 2021. I have directed that the Independent Children's Lawyer be responsible for serving a copy of this Order on Victoria Legal Aid requesting an immediate assignment of the matter to another s102NA lawyer for the final hearing on 24 August 2021. It would be appreciated if another lawyer could be assigned for the mother prior to the mention of 27 July 2021.
We do, however, need to accept the possibility that Victoria Legal Aid will not appoint a third s102NA lawyer as the mother has withdrawn instructions from the first two such appointments. I have explained to the mother that the responsibility to prepare her case for final hearing is personal. It should be much easier for the mother to get her case ready for trail if she is legally represented. However, if the mother is unrepresented for the final hearing, because no further s102NA lawyer has been assigned or for some other reason, the mother should assume that lack of legal representation will not guarantee her an adjournment because, from today, the mother has notice that she is responsible for preparing her own case including planning for the contingency that she may have to present the case on her own behalf. This includes drawing all affidavits and case outlines.
If the mother ceases to be legally represented that will be her difficulty and not a basis upon which she can seek indulgences. If the mother represents herself at the final hearing, she may not be permitted to cross examine the father but the father would be able to have the mother cross examined by a lawyer acting on his behalf. I am currently uncertain as to which, if any, of the s.102NA(1)(c) descriptors apply to the mother’s circumstances. However, it is clear that s.102NA(2) applies both in the case where the cross-examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the cross-examining party is the alleged victim and the witness party is the alleged perpetrator.
The next order sought by the mother is:
8.Until then, time with the father be as follows, considering serious risk; family violence & abuse on a minor, children exposed to family violence and neglect and most importantly child's Special Needs.
(i)Facetime contact Wednesday and Sunday between 11am and 1 pm for half an hour on each occasion, in the best interest of a child with 'Special Needs' & major sleep, speech and developmental issues. Particularly evident after 2 head traumas in the fathers supervision. Y where practicable if not feeding or sleeping. If there is signs of distress by the children the call may be ended. If there is any badgering, inappropriate comments on the children's appearance, or brainwashing with false memories the call may be ended.
(ii)Any face to face contact be 1 hour to begin with for X, each alternate Saturday, at an agreed supervisory centre in Region C, the cost to be shared between parents. Or with an agreed supervisor from the maternal extended family or from our local church. Face to face contact between Y and the father will need to be reviewed once Y is at least 2 years of age so that he is well established in walking on his own and onto solids, for safety and protection. Up to at least 18 months he will be highly reliant on mothers milk and comfort. Note: X was neglected by father at 15 months suffering 2 head traumas.
(iii)This can be reviewed and reassessed after not less than 6 visits. Should the visits be in the child X's best interest and wellbeing, where he is not showing any negative effects on his Special needs, ie trauma, distress or behavioural issues as a result. Care may then be extended to 2 hours each alternate Saturday at an agreed supervisory centre in the Region C, the cost to be shared between parents until the children are at least 5 years. Or with an agreed supervisor from the maternal extended family or from our local church in NSW. For the safety and wellbeing of the children.
The first return date in the Family Court was appointed for 30 July 2021 before Senior Registrar Hoult. However, the matter is now docketed to me and I have appointed a final hearing to commence on 24 August 2021. That is five weeks away.
I will not change any orders today. The Family Report writer, Mr F, records that the father spends FaceTime with X on alternate days between 6pm and 6.15pm. Before me today, there was some acknowledgment on behalf of both parents that the electronic communication has been working better than previously and that the father has been shown Y. I have ordered that each parent can record the electronic communication from which we should be able to identify any inappropriate or non-child focussed behaviour at the final hearing or by the Family Consultant looking at the recordings. I am satisfied that the recording of the communications will not impact on X’s experience of seeing his father’s image. The mother said that she had already taped the sessions.
Given the mother’s reference to supervised time at (iii) above, it would be responsible of the Independent Children’s Lawyer to request that the parents each make application for a supervised contact centre close to the mother’s current residence in Suburb D and the father’s residence in Victoria. The Independent Children’s Lawyer will have to nominate the contact centres and oversee the parent’s applications. It would be prudent to secure a place in a contact centre for when the children may need to use it.
The next order sought by the mother is:
9.Application for these court proceedings to be transferred to New South Wales, where the Lighthouse project (to assist domestic violence victims) is currently available, where professionals are properly trained in these matters so that evidence is able to be properly aired and vented in the most up to date trained courts, for a fair, just, and non-discriminatory trial.
These proceedings were very appropriately transferred from the Federal Circuit Court of Australia to this court on 9 June 2021. The manner in which the litigation is being conducted makes this matter unsuitable for the Federal Circuit Court of Australia which is a high volume court. The Lighthouse Project is the Courts’ response to cases which may involve family violence, by shaping the allocation of resources and urgency given to such cases.[1] It is a three part process of screening, triage and case pathways and case management. Cases are divided into one of three streams[2]:
(a)Evatt List – a specialist Court list designed to assist families who have been identified as being at high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a Judge-led support team. The team has specialised training and is experienced in working with families where high risk safety issues have been identified.
(b)Other case management – low to moderate risk cases will be directed into the usual case management pathway for Federal Circuit Court cases with a focus on completing alternative dispute resolution to resolve or narrow the issues in dispute, where appropriate.
(c)Alternative Dispute Resolution – suitable cases are offered court ordered family dispute resolution to assist parties to resolve issues as soon as possible. This is provided to the parties at no cost to the parties. The Alternative Dispute Resolution is usually convened by a Registrar of the Court and a Family Consultant. It is confidential.
[1]>
The Lighthouse Project is only available at certain registries of the Federal Circuit Court of Australia. It commenced on 7 December 2020 in Adelaide and in Brisbane and Parramatta on 11 January 2021. All of the attributes of the Lighthouse Project are available in the Family Court and can be applied to this case if, and when, appropriate.
The mother and father live nearly 1,000 kilometres apart.
I enquired about the parents’ witnesses. The father will be his only witness in addition to wanting to cross examine the experts. The mother will be a witness and she proposes to call her mother, her older son (23 yo) from Melbourne, the father’s former wife Ms P, her brother Mr J and his wife Ms L from City EE, NSW, Ms M, Ms Q from Suburb GG near Suburb D, Mr T, two speech pathologists (one of whom is yet to be appointed), Ms V from FF Doctors, Dr HH (paediatrician), Dr E (GP, KK Medical Clinic), Ms U (mother’s treating psychologist, Sydney), Ms Z (mental health nurse/mother’s counsellor, Location JJ), Ms AA (KK Medical Clinic) and Ms H (mother’s niece).
The witnesses are predominantly based in New South Wales and close to, or in, Suburb D. The mother selected Newcastle as the Registry most convenient to her. My enquiries of the Newcastle Registry reveal that one judge may have some time in mid-March 2022 or in April 2022 after Easter. In my opinion, it is contrary to the children’s best interests for this matter to wait until then. The father has not even held his new son. The matter should be commenced as soon as possible.
This is not a matter that can be done exclusively on the courts’ MSTeams platform. I would prefer to see the parents and particularly the mother’s supporting witnesses on a fully attended basis. If the mother and the father are still practising the DD faith, I would like to hear from an elder or bishop of the DD Church who knows the mother and the mother’s family. It may assist the children if the mother has a person of authority who she knows and respects who themselves understand something of the context in which the final orders are made by this court.
Between now and the mention on 27 July 2021 I will enquire of the National Case Management Judge whether I can sit in Melbourne and Newcastle on the basis that the furthest the mother and her witnesses would need to travel is Newcastle.
I have ordered the mother to identify the evidence already filed by her witnesses. Time permitting, I will take objections to evidence from both parents and the Independent Children’s Lawyer on the mention date. The parties would do well to reflect on Judge Carter’s comments about affidavit evidence which assists and does not assist the court at paragraphs 19 t0 21 of her Honour’s reasons for decision delivered on 21 December 2020.
I am informed that the father’s solicitors have charged $15,000 to date and that Mr N Gardiner of Counsel has charged a similar amount. A split hearing would enable the father’s evidence to be adduced in Melbourne and then he could travel to New South Wales for the balance of the hearing and, if appropriate, some face to face time with the children initially on a supervised basis whilst his lawyers remain in Melbourne.
I will not transfer the proceedings to another registry closer to the wife where a transfer will result in the final hearing being further delayed.
Finally, the mother’s application in a case seeks:
10.REMOVAL of Current ICL firm where there is strong indications of collusion between father’s lawyer & ICL's Barristers.
Paragraph 17 of the mother’s affidavit, sworn on 12 July 2021 reads:
Removal of current ICL where there is strong indications of collusion between the fathers lawyer and ICL. On every occasion when orders have been made, the ICL and father are in perfect agreement with (mirror) orders they are seeking. Emailing between Mr Donalds Lawyer and ICL where I was included, came to light just prior to the 9th June hearing. ICL firm has shown they are NOT making recommendations in children’s best interest. How can the ICL firm continue to ignore the child’s Special needs (that has come to the forefront in recent months) and the expert team that is setup to assist him. The enormous support in place to assist the children in all their needs as well as practical consistent physical care. This shows a definite biased attitude supporting the father. Ignoring the children’s needs, especially X with Special needs to be torn away from his team of 8 expert therapists will prove to be most destabilising and punishing the children. (SEE EXHIBIT 20 email from ICL responding to Mr Samuel David’s email, that I was not included in). indicating Mr Davids intention to make contact with the Barrister before trial, leaving me out of discussions, which is completely unfair. Which strongly suggests this is what happened prior to the interim orders made on December 21st 2020. Where there was erroneous information submitted to the court from the ICL’s Barrister what was not anywhere in evidence. If the ICL is supporting the fathers threats to issue a warrant on the mother, that indicates they are threatening to take the children from their mother. This would be extremely traumatic and destroy the children, particularly the Special needs child, while also having unknown far reaching negative effects on a baby who is totally dependant on his mother for his every need and sustenance. This only confirms once again the ICL firm are not focusing on the best interest of the child/children. To remove the children from their mother will rip their whole world apart. Their mother is their nurturer, comforter, and their everything, their whole world. A mother is everything to a child, especially a baby. They would never recover from that. The ICL would be supporting the destruction of the children. By destroying their mother who is a person of good standing and exemplary citizen of this country her whole life since birth. SUCH ORDERS ARE DRACONIAN and NOT IN THE BEST INTEREST OF THE CHILDREN. Also that ASSUMES that their father is not violent in spite of evidence that proves contrary.
Exhibit 20 is an email dated 3 June 2021 at 8.26.26 am from Michael Osrin of Nicholes Family Lawyers addressed to the father’s solicitor, Samuel David, and copied to Ms Donalds which, omitting formal and irrelevant parts, reads:
Dear Mr David,
We refer to your email correspondence of 2 June 2021.
We confirm that we have briefed Soren Heggie of Counsel to appear on behalf of the ICL at the final hearing on 9 June 2021.
Soren can be contacted at …@vicbar.com.au.
The first complaint is that, prior to the matter coming back before the Court before Judge Carter and, on 3 June 2021, the above email was written by the Independent Children’s Lawyer to the solicitors for the father, notifying them of the identity of counsel who would appear for the Independent Children’s Lawyer at the upcoming hearing. The mother asserts the email indicated that she was not included in discussions or in correspondence. That appears to be at odds with Exhibit 20, which is the email in question. The email is clearly cc’d to various people, including the mother, using the email address …@hotmail.com which the mother confirms today is her address. It is difficult to see how she was not included if she was, in fact, copied into the email.
The next matter is that the mother refers either to unspecified evidence adduced by the ICL or an unspecified submission made by the ICL at a hearing, which she thinks the information for which could not have come to the ICL without some assistance or leading by the father.
The role of the Independent Children’s Lawyer is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what they believe to be the best interests of the child.[3] An Independent Children’s Lawyer is not a legal representative retained by the child and is not bound by any instructions from the child.[4] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The Independent Children's Lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[6]
[3] Family Law Act 1975 (Cth) s 68LA(2).
[4] Family Law Act 1975 (Cth) s 68LA(4).
[5] Family Law Act 1975 (Cth) s 68LA(5)(d).
[6] Family Law Act 1975 (Cth) s 68LA(5)(e).
The Independent Children’s Lawyer has a duty to remain neutral as between the parties in his or her treatment. They should deal with the parents impartially. However, if an Independent Children’s Lawyer considers that the orders sought by one party, as opposed to orders sought by the other, are in the best interests of the children, it is entirely appropriate that the Independent Children’s Lawyer inform the Court that one parent’s proposal is supported by him or her as being in the best interests of the children and be in a position to argue the proposition. It may also be that an Independent Children’s Lawyer puts up a hybrid position and, within that hybrid position, there can be discerned more support for one parent’s case than another parent’s case. That is a legitimate and proper way to inform the Court and discharge their duty to represent the interests of the child.
In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative (the successor in title to the Independent Children’s Lawyer). His Honour observed:
[11] Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
Holden CJ later described “a number of very good reasons” why the court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour observed:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
In Knibbs & Knibbs[2009] FamCA 840, Murphy J referred to the last sentence of the above quote from Holden CJ and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
Whatever the Independent Children’s Lawyer’s position is, it is no better than nor preferred by the court over the proposals of the parents by reason of it coming from the Independent Children’s Lawyer. The Independent Children’s Lawyer has party status but nothing more. It is by no means uncommon for the position taken by the Independent Children’s Lawyer not to be accepted by the court.
It is not sufficient or helpful for an Independent Children’s Lawyer to merely express a view. An Independent Children’s Lawyer should take a position which he or she can support on the evidence.
Ms Donalds makes a complaint that she has been bullied, besmirched and mocked during Court hearings. Nobody should come to Court and feel either of those things. That would be totally inappropriate if it happened. I cannot find on the evidence to which I have been taken today that there has been bullying or unprofessional behaviour. However, I can indicate now is that it will not happen in my Court.
I dismiss the mother’s application for removal of the Independent Children’s Lawyer.
Generally
There is a hearing before Senior Registrar Hoult on 30 July 2021 which I will vacate. Henceforth, applications should be returnable before me if I am reasonably available.
The mother’s Application in a Case will be otherwise dismissed. The parties need to get ready for the final hearing without the distraction of further interim applications. This is a matter in which a psychiatric assessment of both parents would likely assist the court. I have already asked the Independent Children’s Lawyer to look into the availability of an assessment for which the parties would have to pay. If psychiatric assessment is beyond their reach, the court will have to do without. In any event, the court determines matters principally on the behaviour of parents rather than on a diagnosis indicative of whether one parent or the other has a mental illness or a psychological condition. Diagnosis is relevant to treatment and treatment is usually relevant only after a party has acknowledged that they want to change their behaviour in the future. Finally, the Independent Children’s Lawyer should follow up applications being made by the parents for acceptance of the family into a contact centre without prejudice to the entitlement of either party to contend at the final hearing that a contact centre is inappropriate or unnecessary.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 20 July 2021
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