Egerton and Hiczewski

[2011] FamCA 574

FAMILY COURT OF AUSTRALIA

EGERTON & HICZEWSKI [2011] FamCA 574

FAMILY LAW – CHILDREN – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Egerton

RESPONDENT: Ms Hiczewski

INDEPENDENT CHILDREN’S LAWYER: Mr G Couper

FILE NUMBER: BRC 10781 of 2008

DATE DELIVERED: 28 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 June 2011

REPRESENTATION

THE APPLICANT: Mr Egerton in person

THE RESPONDENT: Ms Hiczewski in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Couper (solicitor) of Couper Geysen Family & Animal Law

Orders

IT IS ORDERED THAT

1. The Respondent Mother shall file and serve a Response to the Amended Initiating Application filed by the Father on 19 February 2010 on or before 4.00pm on 8 July 2011.

2. The Applicant Father shall file and serve his Affidavit of evidence-in-chief together with the Affidavit of evidence-in-chief of each witness whom he intends to call at the trial of this matter on or before 4.00pm on 29 July 2011.

3. The Respondent Mother shall file and serve her Affidavit of evidence-in-chief together with the Affidavit of evidence-in-chief of each witness whom she intends to call at the trial of this matter on or before 4.00pm on 27 August 2011.

   AND IT IS NOTED THAT

   (a)The parties are each to file one Affidavit only which contains all such evidence as they assert to be relevant to the determination of the best interests of the two children the subject of these proceedings and for that Affidavit to contain the entirety of their evidence in that respect.

   (b)Each of the parties shall file one Affidavit only from each witness on whom they intend to rely.

   (c)The witnesses upon whom the Father intends to rely are Mr W, Mr R and a female real estate agent whose name the Father will advise to the Independent Children's Lawyer within 7 days of the date of this order, and possibly his current wife.

   (d)The Mother intends filing an Affidavit from her father, her brother, her husband, Ms G and Ms S.

   (e)The Independent Children's Lawyer as currently advised, may file evidence from the contact centre referred to in earlier orders made by the Court and/or documentary or other evidence from the children’s school.

IT IS DIRECTED THAT

1. A Directions Hearing be held before a Registrar on a date and at a time to be advised as soon after 27 August 2011 as can be arranged.

2. It is respectfully requested that the Registrar:

   a.check compliance with these orders and insofar as it is considered appropriate, list this matter for the Callover on 8 September 2011; and

   b.undertake all such steps as might be necessary, in conjunction with the parties, so as to have this matter, if at all possible, heard and determined before the end of this year.

   AND IT IS NOTED THAT for reasons provided contemporaneously herewith, his Honour Justice Murphy is excused from hearing the trial of this matter.

IT IS NOTED that publication of this judgment under the pseudonym Egerton & Hiczewski is approved 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

Ex Tempore

REASONS FOR JUDGMENT

1. This sad case, which does neither of the parents any credit, started life some two years ago in the Federal Magistrates Court.  For reasons which are by no means apparent, the matter was transferred to this Court by Howard FM. 

2. Subsequent to that time, this matter was referred to this Court’s Child Responsive Program, and, as a result, the family had contact with Ms B, a family consultant attached to this Court.  A number of orders were made in this Court subsequent to the transfer which took place in October 2009. 

3. At the time of the transfer, time between the father and the two girls the subject of these proceedings, was to be supervised in a manner set forth in the orders. 

4. Amendments to those arrangements were made by reason of an order made on 20 January 2010.  Subsequently, on 23 February 2010 – that is to say, almost 18 months ago – interim consent orders were made whereby the two girls were to live with the mother and were to spend alternate weekend time with their father and to communicate with him via Skype and telephone. 

5. Subsequently, a report was ordered pursuant to section 62G of the Act and Ms B provided that report. 

6. Other proceedings occurred in the intervening time, for example, pursuant to an Application in a Case brought by the husband which was listed before Principal Registrar Filippello but adjourned to be heard by me on 7 December 2010.

7. It can fairly be said that, during the whole of the time that these parties have been litigating, the proceedings have been littered with a miscellany of assertions and counter-assertions which, on any view of it, provide the focus of the parties’ attention as distinct from a focus on the proper co-nurturing and co-parenting of their two delightful children. 

8. So much is this so that I determined to deliver ex tempore reasons on 7 December 2010 during which I set out a number of matters, designed to serve a number of purposes.  Not the least of those purposes was to implore these two parents, who I then said appeared to me to be intelligent and decent human beings, to put aside their differences and to co-operate with a view to providing the best post-separation co-nurturing of the two girls as was possible. 

9. It is, I think, important to emphasise in these reasons that which I emphasised in those earlier reasons, now made over six months ago.  I do so because it is abundantly plain on the evidence before me that not one single solitary thing has changed in that intervening six months, despite the things that were said in those reasons. 

10. In those reasons I quoted passages from Ms B’s report. Two were, and remain, of particular significance:

    Sadly, both girls recounted what can only be described as a nightmarish, emotionally distraught experience during the changeover at [the park].  Both girls sobbed [during the interview] as they recounted how distressed and frightened they were when their parents could not agree on where the changeover should occur.  Their descriptions of their father’s behaviour suggested he was behaving in a highly agitated and emotional state and clearly scared the children.

    Again, [L] sobbed as she described how she tried in vain to contact her mother and/or [the mother’s husband] and attempt to get one or other parent to concede and drop them off at an agreed location.  When it appeared that [Mr Egerton] may not return the children (it is alleged that he threatened to return to Brisbane and request that the mother collect the children from the paternal grandparents’ [Brisbane] residence), [L] called the police and informed them that her father would not return them to their mother. 

11. At that time I emphasised three particular passages.  Each of those passages referred to the girls’ plainly obvious profound distress.  Each of those passages referred to the fact that the girls referred with horror to the behaviour of both of their parents. The third of those emphasised passages underlined the fact that a 12 year old girl – I repeat, a 12 year old girl - took it upon herself to call the police in the midst of disgraceful, appalling and – emotionally – abusive behaviour by both her parents. 

12. In those reasons I also made a number of comments in addition by way of indicating my own reaction to the material that I had read. I said, for example, that reading the report of Ms B, within which she describes the two girls as “delightful, polite and articulate young ladies”, made me want to weep.  Ms B, who gave oral evidence on 7 December, said that she, too, felt like weeping during the preparation of the report. 

13. In those reasons I stepped out of what might be seen to be a judicial role and the usual parameters of reasons for judgment (or, indeed, the judicial determination of inter parties’ proceedings in a civil Court).  I said, in the context of those reasons, that I begged, and I emphasise the word “begged”, these parents to stop fighting in the best interests of their children. I said:

    Well, [E], well, [L], you should each receive this message.  This Court has begged – begged – your parents to stop fighting.  How I wish I could make them stop fighting, but it seems I can’t. 

14. I was hopeful that my reasons for judgment, and the parents having listened, one would hope carefully, to a trained family consultant give evidence about the emotional impact that witnessing these two beautiful girls saying the things they’ve said might have an impact upon these two parents.  It appears that I was naïve in thinking that these two people could be mature enough, or insightful enough to put aside their pathetic, stupid, relentless disputes in the best interests of their children. 

15. In my naivety, I ordered that Ms B should see the family again in the hope that the intervening time might produce in these parents some common sense and intelligence. About that, I was also wrong.   

16. So much is evident from the updated report prepared by Ms B, annexed to an affidavit filed 27 May 2011.  Very little, if anything, has changed.  Not only is the report redolent of the fact that there has been no change but, during the proceedings before me today, the Court was once again confronted by two people who were prepared to trade insults and accusations of falsity at each other.  

17. Mr Egerton sought, and was granted, leave to file an affidavit.  Within that affidavit, notwithstanding the background to which I have just made reference – and notwithstanding the fact that this man is apparently a trained professional – the father says, “The only person pathetically obsessed with discovering other addresses for me is this twisted mother”. 

18. It is breathtaking that this man would put that in an affidavit in the light of what has been said before him, including in plaintive oral evidence from Ms B. Yet that, apparently, is a measure of the man.  I should not, in saying that, exclude Ms Hiczewski from my criticisms.  I am also profoundly concerned that her current husband has behaved in an appalling and disgraceful manner. 

19. I think it highly likely that the parties’ stories each contain some truth.  I have little doubt it is the truth as they see it. But, the problem is that neither can see beyond the fact that the truth or otherwise of these stupid, childish, pathetic assertions and the disgraceful behaviour of all of the adults involved, including Ms Hiczewski’s new husband, does these children harm. 

20. That this is tragic for the children should be manifest and goes without saying. 

21. Nevertheless, when I asked each of the parties what they wanted, it was plain that what they in fact want is to assert their own versions of the truth, to assert their own versions of why their version was to be preferred over the other and to assert the other was at fault for the issues that are currently present with respect to their girls.

22. That being the case, this Court must do all that any Court can do; that is to attempt to put in place orders. Those orders will plainly be unsatisfactory for these children.  As I said in my earlier reasons, the only arrangements that are entirely satisfactory for children in post-separation situations are those that can be agreed upon between two adult parents who are prepared to predominate their children’s best interests ahead of their own. 

23. But a Court can do nothing more, despite what is said in the papers, despite what exhortations are made by other people, than to decide the inter parties’ disputes brought to the Court by, in this case, parents. 

24. I have attempted over the last many months to have these parties find an extra-curial means by which they could resolve their dispute.  Every single solitary attempt, including attempts by me, that have sought to emphasise the profound distress I feel at the position that these two children are in have failed and failed miserably. 

25. It seems that these two parties are utterly determined to not put aside their childish and pathetic behaviour and to litigate in this Court. So be it.  I will make directions to bring into effect that which each of them would appear to so clearly want, that is, a trial. 

26. It will be apparent from all that I have said that in the course of these proceedings – in my exhortations to these parties – indeed, my plaintive pleas to these parties to put aside their differences and to think about their children, that I have gone beyond the boundaries of those within which a judge should properly stay within if that judge is to ultimately decide questions of credit, as plainly would appear to be needed here. 

27. It is undoubtedly, then, my duty to recuse myself from hearing the trial of this action and to direct that when this matter is listed for trial it be listed before a judge other than me. 

28. I will formally make the orders that I have earlier indicated. Those orders will issue in the next 24 hours or so.

I certify that the preceding thirteen (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 June 2011.

Associate:   

Date:  25 July 2011