Eddings and Eddings

[2019] FCCA 3041

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDDINGS & EDDINGS [2019] FCCA 3041

Catchwords:
FAMILY LAW – Ex tempore ruling – mother’s Rice v Asplund objection not acceded to – orders to progress matter to trial made.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR EDDINGS

Respondent: MS EDDINGS

File Number: DGC 1144 of 2017

Judgment of: Judge Burchardt

Hearing date: 10 October 2019

Date of Last Submission: 10 October 2019

Delivered at: Dandenong

Delivered on: 10 October 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Meier

Solicitors for the Respondent: MDL Law

Counsel for the Independent Children’s Lawyer: Mr Bult

Solicitors for the Independent Children’s Lawyer: Bowlen Dunstan & Associates Pty

ORDERS

1. The matter be adjourned to this Court for final hearing before Judge Burchardt on 30 April 2020 at 10.00 am, with an estimated hearing time of 2 days.

2. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal and Federal Circuit Court Regulations 2012.

3. Grant leave to the parties to inspect documents subpoenaed from Victoria Roads.

4. Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim orders are made in terms of the Independent Children’s Lawyer's minute in accordance with the attached Minutes of proposed orders placed on the Court file.

5. Pursuant to s.62G(2) of the Family Law Act 1975, the parties and children X born … 2005 and Y born … 2009 attend upon a Family Consultant nominated by the Manager of Child Dispute Services in the Dandenong Registry of the Family Court of Australia for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties shall comply with all reasonable directions for attendance on the Family Consultant.  The report shall be released 35 days prior to the final hearing date.

6. The Family Report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

7. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

9. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10. No less than 28 days prior to the Final Hearing date detailed in Order 1 herein, the Applicant Father make, file and serve any Amended Initiating Application and Trial Affidavit/s in support relied upon.

11. No less than 14 days prior to the Final Hearing detailed in Order 1 herein, the Respondent Mother make, file and serve any Amended Response to Initiating Application and Trial Affidavit/s relied upon.

12. No less than 7 days prior to the Final Hearing date detailed in Order 1 herein, the Independent Children’s Lawyer make, file and serve any Affidavit/s relied upon (if applicable).

13. No less than 72 hours prior to the Final Hearing date detailed in Order 1 herein, the parties file and serve a Case Outline and Summary Document.

14. Until further Order, Orders 5, 6 and 10 of the 5 August 2019 Interim Orders of the Court remain in full force and effect.

15. Until further Order, the Final Parenting Orders dated 26 March 2018 remain in full force and effect.

16. Pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies it was reasonable for the Respondent Mother and the Independent Children’s Lawyer to engage an Advocate to appear at Court today.

THE COURT DIRECTS THAT:

1. The solicitors for the Independent Children’s Lawyer file a clean, certified, electronic copy of the Minute in Word Format to the chambers of Judge Burchardt by way of email to [email protected]  within seven (7) days. 

AND THE COURT NOTES THAT:

A.That the Independent Children’s Lawyer intends on meeting with the children prior to the Final Hearing date detailed in Order 1 herein and the Mother and Father today consent to this meeting taking place.

B.The Applicant Father obtained independent legal advice from Mr G. Lung Duty Lawyer, of Victoria Legal Aid Dandenong, today in relation to these Orders prior to signing these Orders detailed herein.

C.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

D.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

E.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 5 herein, they shall write to the Chambers of Judge Burchardt seeking that the matter be listed on short notice for their objection to be heard.

F.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

H.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme” for representation but any such application must be made at least 12 weeks prior to the Final Hearing.

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

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1144 of 2017

MR EDDINGS

Applicant

And

MS EDDINGS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the Court made final orders in March 2018 by consent.  They were not successful in concluding court proceedings between the parties, because a further application was filed on 10 May this year by the father and it was the subject of interim orders in August.  The Independent Children’s Lawyer seeks that the matter be set down for a trial with a family report.  The father supports that and raises a few other matters.  The mother takes a Rice & Asplund point and in the alternative essentially supports the Independent Children’s Lawyer’s position. 

2. The orders made in 2018 followed a family report.  It is fair to say that that family report was critical of both parents to an extent and opined that both parents may have sought to influence the children’s views, although the emphasis, I would say, on reading the report, was stronger in relation to the father than in relation to the mother. 

3. Since then the only major incident has been that the child Y ran away in … 2019.  Mr Meier says this was all sorted out on 5 August 2019, but even the mother’s subsequent affidavit material suggests that the relationship between her and Y remains to an extent a work in progress.

4. The Independent Children’s Lawyer’s position is that there has been enough going on between the parties to make it appropriate that there be a hearing.  Mr Meier says, further, that any further proceedings will involve costs, which is undoubtedly true, and that a further family report may be yet another burden on these children.  He submits that the father is endeavouring to influence the children.  

5. I regret to say this is one of those cases where, first, the incident of a child of his age running away from home is not something so small that it can be just ignored.  And I note that the police formed the view, as reported to the Department of Health and Human Services, that they had no concerns about the children in either parent’s care, but the father was trying to unnecessarily involve police to have the children removed from the mother.

6. The materials filed by the parties from time to time show a strong degree of mistrust and conflict between the parents.  Sometimes, unfortunately, orders made by consent fail to really assuage those concerns.  In one dreadful sense, these children are going to be the subject, I would opine, of ongoing litigation in one form or another, probably in the form of contravention applications or further applications to vary, for a considerable period of time, until the Court finally puts to rest who is right and who is wrong as to what really has happened and is happening with these children.  There will be no end to litigation, in my view, without a proper curial determination.  They have got to go in the witness box and face the findings of fact that the Court will make.  That, at least, is likely to produce a final outcome that the parties will ultimately live with and it will benefit the children in that sense. 

7. Mr Meier is right.  It is undesirable there be a further set of proceedings, for the reasons he gives.  But in my view, bearing in mind that Rice & Asplund is always first and last a best interests question, the best interests of these children will in the circumstances I have described be met by having a family report and a trial.  Given that Mr Meier otherwise supports the Independent Children’s Lawyer’s position, I don’t need to spend much time on that. 

8. The father also supports there being a family report and a trial.  He raises a number of other matters.  First of all, there is the failure of Ms A to be prepared to permit the father to participate in therapy.  It seems she may also have felt it is inappropriate for the children to attend.  There is really nothing I can meaningfully do about this at this stage.  It will have to await trial and the family report, to see if it is necessary for any further action to be taken. 

9. There is already in place restraint on other counsellors and that should remain.  And putting it shortly, I think that the Independent Children’s Lawyer’s submission about telephone time is correct.  These parties need precise and clear orders, at least on an interim basis.  I note that there are even now continuing Intervention Order proceedings between the parties.  There is a five year Intervention Order actually in place.  In my view, any such matters will have to await trial. 

10. While I can appreciate the father may receive texts that must be distressing to him, the Intervention Order was made by a court of competent jurisdiction for reasons that seem proper to that court.  And I am not in a position to double guess it.  The proper forum for determination of any alterations to those orders would be in the Magistrates’ Court in the end of October.  Accordingly, I am going to make orders in terms of the Independent Children’s Lawyer’s minute, which I have managed to misplace, but will find.  Interim orders in terms of the independent children’s lawyer’s minute. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 24 October 2019