Egerton and Hiczewski

[2012] FamCA 876

FAMILY COURT OF AUSTRALIA

EGERTON & HICZEWSKI [2012] FamCA 876

FAMILY LAW – DISCHARGE OF PREVIOUS PARENTING ORDERS

APPLICANT: Mr Egerton

RESPONDENT: Ms Hiczewski

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 10781 of 2008

DATE DELIVERED: 24 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 September 2012

REPRESENTATION

FOR THE APPLICANT: No appearance

FOR THE RESPONDENT: Ms Hiczewski in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Couper Geysen Family and Animal Law

Orders

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the children L born … November 1999 and E born … May 2001 (“the children”).

3. The children shall live with the mother.

4. The children shall spend time with and communicate with the father at their initiation.

5. The father is permitted to write and send by way of postal service to the said children any letters, cards and gifts he considers appropriate.

6. Should the children wish to initiate communication with the father by way of telephone, Skype, letter or card or should they wish to spend some time with him, then the mother shall do all that is necessary on her part to facilitate such communication by the children with the father or such time as the children may wish to spend with the father.

7. Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

8. Contravention proceedings that remain outstanding are now finalised, the Court being unable to determine that any further sanction as against the respondent mother is appropriate.

9. The Independent Children's Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Egerton & Hiczewski 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: BRC 10781 of 2008

Mr Egerton

Applicant

And

Ms Hiczewski

Respondent

REASONS FOR JUDGMENT

1. This is the second occasion on which the substantive parenting dispute between Mr Egerton and Ms Hiczewski has been listed for a final hearing in this Court.  It was previously listed for a final hearing on Monday 30 January 2012, that date having been listed some time back in early 2000 or early to mid-2011.  On that day, Monday 30 January 2012, the father did not appear, having informed the Court that he was unwell.

2. On that day, on the application of the Independent Children’s Lawyer, who has been in the matter for some time, supported by the mother, and after hearing oral evidence from the Family Consultant who has long been involved in this matter and who has interviewed the children on several occasions, including again on that morning, Monday 30 January 2012, I suspended all previous interim orders that provided for the children to spend time with and to communicate with their father.

3. I subsequently listed the matter for a final hearing again on today’s date.  Between 30 January 2012 and now, the father has appeared before the Court on, I recall, at least two occasions.  The father has, prior to 30 January 2012 and since that date and the setting of today’s trial date, on the occasions that he has been at the Court, and again more recently in an affidavit that he filed pursuant to trial directions that I made with a view to having the matter proceed to trial today, made it absolutely clear that he was very much against the Court proceeding to a final determination of the parenting dispute between him and his former wife, Ms Hiczewski, in respect of their two daughters until he had had some opportunity to re-establish a relationship with the girls and his relationship with the girls was assessed by an independent psychologist.

4. Indeed, on an occasion when the matter was heard by me earlier in the year with a view to assessing compliance and readiness and for pre-trial directions to have the matter readied for today’s hearing, the father was very strong in submissions that an independent psychologist ought to be appointed and one particularly from amongst a number of names that he himself was able to provide.

5. I recall that on that occasion I made some effort to reach a position whereby orders could be put in place for an assessment to be undertaken in respect of the children and their relationship with the father by a psychologist, but matters transpired such that Mr Egerton was unable to be satisfied by the course that I was proposing, and I left it, at the end of the day, for him to make his own written application in a case seeking the orders that he indicated the Court should make.  I note today that no such application was ever filed. 

6. The case has also been made a little more complicated by the fact that in the lead-up to the final hearing, Mr Egerton filed not one but multiple contravention applications against the mother.  Indeed, two contravention hearings have actually taken place over the last 18 months, both of them having been heard by me.  On both of those occasions, the contraventions alleged by the father against Ms Hiczewski went into multiples of tens, and they effectively involved, principally, assertions that the mother had contravened the primary orders, without reasonable excuse, in respect of the children communicating with their father by Skype and by telephone.

7. There were just a few specific allegations in respect of events that had transpired at handovers that were scheduled to take place at a children’s contact centre in Queensland that were also included.  As it transpired, I did ultimately determine in respect of both of those contravention hearings that the mother had, without reasonable excuse, contravened the orders that were in place in respect of the time that the children were to communicate with their father and the manner in which they were to communicate with him.

8. Essentially, I determined that the mother had not gone to the length that the law required of her to ensure that the children were at least in a position whereby they were able to communicate with their father.  The mother’s case was and has consistently been that the children themselves have got to the point where they don’t want to communicate with their father and that they turn their phone off and make no effort to be available at the time they know that their father is going to call.

9. The mother has always asserted that the children inform her that the father talks to them about adult issues and matters pertaining to the parenting dispute between them and that he talks to them in such a way as to make them feel bad, and makes them feel responsible for the dispute that exists between him and their mother.  I determined in respect of the last contravention proceedings, after I found the mother had contravened without reasonable excuse on a number of occasions, that in the circumstances presented, I considered it appropriate to not impose any particular sanction upon the mother at the time, but to adjourn the further consideration of that issue be part of the matters to be determined in the trial of primary parenting proceedings.

10. I made it clear in my reasons that I considered that there were matters relevant to my determination of the appropriate sanctions to impose upon the mother, if any, that could only be properly considered and determined by way of hearing the evidence that was going to be led and tested in the course of these substantive parenting proceedings.  It seemed from Mr Egerton’s submissions to Court that he was unhappy with that course, and it seems further, from the affidavit that he filed in recent days, that he remains unhappy with that course.

11. Nevertheless, I determined that it was the course I was going to take.  I considered it was appropriate and was prepared, when I came down this morning, to hear and determine the substantive parenting proceedings as between the parties and to further consider the question of the appropriate sanctions, if any, to impose upon Ms Hiczewski in respect of the remaining outstanding contravention matters that have not quite been finalised.

12. Now, in the course of these proceedings being before this Court over the last few years, the Family Consultant, Ms B, has, as I have already mentioned this morning, been involved in the preparation of family reports for the assistance of the Court on no fewer than five occasions now.  Indeed, on 8 June 2012, when I made directions in respect of preparing this matter for this substantive hearing, I ordered that pursuant to s 62G of the Family Law Act that Ms B should prepare an updated written report in respect of the children and their parents and their current partners.

13. I also ordered in that regard that the mother and the father shall attend all appointments fixed by Ms B in respect of the preparation of this updated report and use their best endeavours to ensure that their current spouses attended such appointments.  The Court has been provided with, and indeed the Independent Children’s Lawyer through his counsel, Ms McDiarmid, this morning, reads in evidence in the proceedings before me all of the reports previously prepared by Ms B, as well as the fifth and final report prepared by her on 24 July 2012.

14. I firstly note that Ms B had sent letters to the parties on 19 June 2012 informing the parties of the dates and times of their appointments at the Child Dispute Service for the purposes of interviews and observations to enable her to prepare her updated report.  Ms Hiczewski and her present husband, Mr S, their infant child and the two children subject of these proceedings, L and E, attended at the Child Dispute Service at 9.15 am on 19 June 2012, which causes me to think that the reference to letters being posted out to the parties on 19 June 2012 must be somehow mistaken.

15. In any event, Mr Egerton did not attend, and Ms B made attempts to contact him.  His mobile telephone number was called and a message indicated that the number was unavailable, and there was no option for her to leave a message for him.  Ms B says she then telephoned Mr Egerton’s parents, and Mr Egerton Senior answered the phone, informed the Family Consultant that he did not know where Mr Egerton was and had no way of contacting him and, in apparently a rather exacerbated manner, informed Ms B that his son, Mr Egerton, was over 40 and now had to handle his own affairs, and that he had been told to butt out of Mr Egerton’s family business.  He apologised for not being able to be more helpful. 

16. A second attempt was made by Ms B to contact the father on his mobile number, but he was still unavailable.  Ms B says that due to the non-attendance of Mr Egerton and his wife, a comprehensive report could not be furnished.  Nevertheless, she went ahead and interviewed Ms Hiczewski and her husband and, importantly, the girls. 

17. I am going to refer now to some aspects of Ms B's report, particularly in respect of her interviews and observations of the two subject children.  She says that the child, L, is now 12 and a half years of age and is currently in grade 7 at the A school.  L reported to Ms B that she was made House Captain this year and is a member of the cheerleading team.  She is apparently very happy at the school and actively involved in the cheerleading activity and doing well at school. 

18. L is recorded by Ms B as having told Ms B that she was happy when the orders were changed by this court in January this year, and she learned thereafter that she did not have to speak to her father on the telephone or spend any time with him.  Ms B quotes her as saying:

    I don't feel stressed anymore and don't get reminded about being sad anymore. It's a relief.

19. Ms B reports that L told her that her father has written to her twice since the orders were changed, something which my orders allowed for, and when she first received his letter she was a bit taken aback, but discovered by way of pleasant surprise that her father had written to congratulate her about being appointed House Captain.  She received a second letter which she reports was to tell her and her sister that their dog had died.  She reported to Ms B that even though that was sad news, she was glad that her father had written and told them.  Ms B reports that L informed her that she did not want to see her father again and reflected, and I shall quote:

    I would love to be able to see dad and spend time with him, but every time you give him a chance, it's the same thing.  He just keeps doing the wrong thing, over and over again, you know.  He talks about court, blames mum, makes us feel bad.  I just don't want to face that kind of stuff again and feel like that again.

    Ms B reported further that L went on to reflect:

    Even if dad changed, I don't really want to see him at all.  I really don't think he's going to change.  He just keeps doing the same thing all the time.

20. In respect of the second child, E, Ms B says that she is currently in grade 6 and will be entering into the grade 7 pilot group that will commence at A School next year 2013.  She reported to Ms B that she is very good at school, getting good grades, and really enjoys playing the saxophone.  She too reported that she was very relieved when the orders were amended in January this year by the court so as to give them respite from having to see and communicate with their father.  Ms B records that E reflected, and I quote:

    It felt good that we didn't have to talk to dad.  It's nice not having to stress about what he says and that he makes me feel uncomfortable all the time.  I don't miss the arguments, and I don't think there will come a time when I want to see him again.  We've tried starting fresh with him, but he keeps going back to talking about court and stuff.  I don't think he can help it. 

    Ms B reports that as E went on to talk about her father, her affect became flatter and she confirmed that it saddens her not to have a relationship with her father.  She struggles with her past experiences of her father and how this has led her to believe that it is not emotionally safe to have a relationship with her father.

21. Otherwise Ms B reports that the girls present in a happy and relaxed manner, that their demeanours were confident and self-assured.  She reported that it is apparent that they have been encouraged to pursue their talents and interests, and also that they are excelling in their interests and developing into lovely young ladies. 

22. Ms B, in her concluding remarks, says that L and E both consistently presented during the initial assessments as highly distraught and puzzled by the alleged behaviour of their father.  She says that it is her view that their comments and emotional states were informed by their own experiences of their parents' separation and the time that they spent with their father which became increasingly more distressing as time passed.  That is an important opinion as it has always been Mr Egerton's case, as I understand it, that the girls do not truly hold to those opinions, but are simply being manipulated by, and expressing the outcome of manipulation at the hands of, their mother.  It seems that Ms B does not accept that.  At this point in time, I am not in a position to do anything other than accept Ms B's opinion on that.

23. Ms B says that it is her view that all reasonable attempts have been made to assist Mr Egerton in maintaining a meaningful relationship with his daughters.  She goes on to say that while both parents have not behaved in a mature and conciliatory manner at times, the current situation renders both L and E reluctant to take a chance and reconnect with their father.  Ms B actually goes on to say that she holds the opinion that Ms Hiczewski recognises the grief that her daughters have experienced in regard to the loss of the relationship with their father and that Ms Hiczewski would endeavour to support the children in re-establishing a relationship with their father if they seek that in the future so long as she can be assured that they will not be at risk of future emotional and psychological harm.  Ms B went on to simply conclude that as the comments made by both L and E have been consistent over the past 12 to 18 months, her recommendations have not changed since January 2012.  Those recommendations were, of course, as I have already pointed out, that there should be no orders that provide for the children to spend time with or to communicate with their father other than in a very limited manner such as by postal communication with them from their father. 

24. I am quite satisfied that Mr Egerton was aware of these proceedings today and the need for him to file an affidavit of evidence in chief and to prosecute what is, after all, his application for parenting orders in this court.  As I have mentioned already, on 8 June 2012, when I made trial directions that included the orders that I have already set out requiring Mr Egerton to attend upon Ms B, I also made an order that the father file and serve any and all affidavits of evidence in chief upon which he intended to rely at this trial by close of court business on Friday, 14 September.  I made it clear to Mr Egerton that it was important for him to file an affidavit of evidence in chief, and that if he did not then it would make consideration of and determination of his parenting application extremely difficult, if not impossible.  Notwithstanding the fact that he did not turn up for the interviews with Ms B, Mr Egerton filed an affidavit on 14 September 2012 as per my direction. 

25. The affidavit of evidence in chief was clearly prepared by Mr Egerton himself and not by a lawyer.  In fact, it says on its last page that it was prepared by the deponent.  It is some six pages long, and, as I have already remarked in exchange with Ms McDiarmid, counsel for the Independent Children's Lawyer, it is not an affidavit that contains admissible evidence that would be appropriate to consider in a parenting orders dispute.  I have read through the affidavit.  It is really six pages of what I would most conservatively describe as complaint levelled against myself, the Court overall, Ms B the Family Consultant, Mr Couper the Independent Children's Lawyer, and the mother.  It gives the impression that Mr Egerton was going to be appearing here today and again arguing for the trial to be adjourned off to be considered at a later date, as he has done in the past.  So, it is clear that he knew the trial was coming up, and it is clear that he has taken, with intent, the course that he has, as I see it, in not appearing here today and prosecuting his application for parenting orders or even taking steps to ensure that appropriate evidence was before the court to enable the court to conclude finally the contravention proceedings that remained outstanding.

26. At the commencement of the day's hearing, Ms McDiarmid, counsel for the Independent Children's Lawyer, informed the court that her instructing solicitor, Mr Couper, had instructed her that he had last night, that is, Sunday, 23 September 2012, been personally served by Mr Egerton at Mr Couper's own place of residence with the affidavit that I have just referred to.

27. Hearing that causes me some concern that I wish to place on the court record. It is rather extraordinary, when an Independent Children's Lawyer has an address for service which is his own professional address out of which he practices, for a litigant in person to go to his place of residence, without any previous arrangement being made for that purpose, and personally serve the Independent Children's Lawyer with an affidavit, particularly one such as this that is full of complaint about many people, but also about Mr Couper himself.  That concern caused me to ask Ms McDiarmid for her instructions as to whether or not Mr Couper had previously given his private address to Mr Egerton, and I was informed that he had not.  So, clearly, Mr Egerton has made his own inquiries so as to be able to find Mr Couper's residential address and attend upon there to personally serve him.  That is the reason for my concern.

1. In all the circumstances, I am left in no position other than one where I am satisfied that the orders I must now make in these proceedings are in accordance with this draft minute that has been handed up to the court by Ms McDiarmid in which a number of orders are set out that she, on behalf of the Independent Children's Lawyer, submits to the court should now be made as being orders that are, in all the circumstances, firstly, the only ones that are really available to the court in the absence of the prosecution of the application by Mr Egerton, and, secondly, in these circumstances, in the best interests of the two girls.  Ms Hiczewski, the mother of the two girls, supports the Independent Children's Lawyer's position in this regard.  I am so persuaded. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 September 2012.

Associate: 

Date:  10 October 2012