EMSDEN & EMSDEN

[2017] FamCA 522

FAMILY COURT OF AUSTRALIA

EMSDEN & EMSDEN [2017] FamCA 522

FAMILY LAW – CHILDREN – where orders are restrictive and require agreement – where agreement not possible – where there is a justification to vary the wording.

Family Law Act 1975 (Cth)

Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 McClintock and Leveri (2009) FLC 93-401 Rice and Asplund (1979) FLC 90-275
APPLICANT:	Ms Emsden

RESPONDENT: Mr Emsden

FILE NUMBER: MLC 4374 of 2007

DATE DELIVERED: 21 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harriss

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

THE RESPONDENT: In Person

Orders

1. That paragraph (7) of the orders made on 15 May 2015 is varied in accordance with paragraph (2) hereof.

2. That the mother spend time and communicate with the children F and G as follows:

   (a)by Skype or Facetime on each Sunday at 5.30pm with the father facilitating the attendance of the children and providing to the mother the relevant electronic number to connect and the mother making the call there at 5.30pm; and

   (b)on the first weekend of each month until further order from 10.00am on Saturday until 6.00pm on Sunday with the mother providing return air tickets to the father no later than 7 days prior to the first Saturday of the month and the airline trip be arranged so that the children arrive as close as practicable in Melbourne at 10.00am and returned to Queensland to arrive at Q Town by no later than 7.00pm on the Sunday night.

3. That the children be met at the Tullamarine airport and be delivered back to the Tullamarine airport by either Mr R and/or Ms R in company with the mother.

4. That at no stage throughout the time that the children are in the company of the mother for the purposes of sub-paragraph (b) above, are they not to be supervised by either Mr R or Ms R.

5. That the costs of travel between the children’s home and the Q Town airport be at the expense of the father and otherwise all costs shall be borne by the mother.

6. That the mother continue drug and alcohol counselling as may be advised by the S Drug and Alcohol Service and to the extent that such Service is willing to so do, the mother authorise her counsellor to provide to the father at his request, details of the mother’s attendances and the success or otherwise of the counselling.

7. That the mother be restrained by injunction from being in the presence of the children (either in person or electronically), if she is affected by alcohol or drugs.

8. Until further order, all communications and face to face time between the mother and the children shall be in the absence of Mr T and for that purpose, the mother is restrained by injunction from bringing the children into contact in any way with the said Mr T.

9. That all extant interim applications relating to parenting matters including the contravention application filed by the father on 24 May 2016, the application of the mother filed 21 December 2016 and the father’s response thereto filed 31 January 2017 and the mother’s application filed 27 April 2017 and the father’s response thereto filed 22 May 2017 are otherwise dismissed.

10. That all outstanding applications for parenting orders are adjourned to a date to be fixed for listing as soon as practicable into a judge’s docket for final hearing.

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 Emsden & Emsden 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4374  of 2007

Ms Emsden

Applicant

And

Mr Emsden

Respondent

REASONS FOR JUDGMENT

1. The genesis of the current parenting proceedings lies in an order made on 15 May 2015.  At a time when the father (Mr Emsden) was represented by lawyers and the mother (Ms Emsden) was not, the following order was made:

   [7]That the wife spend time with the said children as agreed between the husband and wife and such time be subject to the following conditions:-

   a.that the wife continue weekly drug and alcohol counselling and counselling in respect of borderline personality disorder and authorise any treating medical or like practitioner to provide the husband with information in respect of the wife’s attendance at such counselling;

   b.that the wife not consume any illicit substance, medication (other than as may be prescribed by her treating medical practitioner and taken strictly in accordance with such prescription) or alcohol for the period of 48 hours prior to the time the children spend with her and whilst they are in her care;

   c.the wife not drive or be in charge of a motor vehicle in which the said children are transported whilst she is under the influence of illicit drugs, non prescribed medication or alcohol;

   d.that the wife be restrained from denigrating the husband to, or in the presence or hearing of, the said children or either of them or allowing any other person to do so;

   e.that the wife submit for a supervised urine drug screen within 24 hours of a request being made by the husband, the husband being at liberty to request such screens on not more than five occasions between the date of these Orders and 31 December 2016.

2. From the mother’s perspective, the terms and conditions have been a way of stopping her relationship with the children, twin girls, who are nearly 13 years of age.  From the father’s perspective, the mother has failed to convince him of her rehabilitation and abstinence from drugs; he opposes any changes to the arrangements in [7] but also brings a contravention application.

3. Whilst there might be “conditions” in [7], the fundamental order lies in the opening words of the paragraph.  The parties had to reach agreement without which, no contact took place.

4. Before the court in the judicial duty list on 5 July 2017 were the following applications:

   (a)      a contravention application filed by the father on 26 May 2016;

   (b)an application by the mother filed 21 December 2016 seeking an “Airport Watch” order; and

   (c)an application by the mother, opposed by the father that paragraph [7] referred to earlier be varied so that her time with the children is controlled other than by the father.

5. There is also an extant financial issue brought by the mother under s 79A of the Family Law Act 1975 (Cth) (“the Act”). For reasons that remain unclear although having something to do with a claim by the Australian Tax Office against the father, various financial-type applications which were before the court on 2 May 2017 have been adjourned to the Judicial Duty List on 3 October 2017. That arrangement was by consent of the parties. I expressed concern about how long these matters are remaining alive and why they are being separated out from each other.

6. In the same duty list on 2 May 2017, under a reference to “parenting” matters, various applications were again adjourned by consent of the parties but with a notation that reads:

   The parties are in discussions about proposals for settlement of the parenting application. 

7. The evidence clearly indicates, as it did throughout the last 12 months, these matters cannot be compromised and the parties need court intervention.

The contravention

1. On 27 May 2016 the father filed a contravention application.  It alleged that:

   (a)on 9 May 2016, at U School, the mother by deceiving the children’s school, “turned up” demanding to see the children; and

   (b)on the same date, failed to undergo a “comprehensive drug test”.

2. These allegations arise, and are said to be a breach of, [7] of the 2015 orders.  It is difficult to understand what the breach is said to be.  Whilst the father vociferously argued that this was the mother not complying with orders, nothing in the evidence points to her having reached agreement with him or indeed seeing the children.  In respect of the second allegation, there is no such requirement in [7] (or any other paragraph of the orders of 15 May 2015).  It will be self-evident that the “conditions” of [7] are the basis upon which any time takes place but in any event, that time can only be by agreement. 

3. The mother on 15 May 2015 was not represented by a lawyer but she signed the minute that gave rise to it.  Whether she understood what she was signing in so far as the whole of the control of her time with the children lay with the father, I am unable to say.  I note that there was an Independent Children’s Lawyer who agreed with the orders.

4. The father’s evidence to support the allegation does not indicate that the mother saw the children and there is no evidence that any agreement was reached.  The mother’s evidence was that she was desperate to see the children because she could not get to see them by agreement.  She failed to fulfil the father’s wishes to enter some rehabilitation centre.

5. The father submitted that he did not have to prove the facts because the mother had, by a subsequent affidavit, admitted the breach.  I find that is not the case.

6. Leaving aside the question of whether the actions of the mother could be construed as a breach, it is troubling that there was a contravention application subsequently filed by the father which, between solicitors, was compromised and did not proceed.  Having regard to the matters raised about the nature of the application, I find it perplexing that it was not addressed more promptly. 

7. From the father’s perspective, I can understand why the contravention application remained alive.  In an affidavit but filed for another purpose on 31 January 2017, he said:

   [7]Since the making of the Final Orders, the Applicant Mother has failed to meet any of the conditions outlined in the Orders and has not spend (sic) time with the children as a consequence.  She has been unable to do so because of her continuing drug and alcohol abuse.  She has attempted to circumvent her obligations by posing as her mother (the children’s grandmother) in a visit to their school in Queensland.  Her breach of the Orders on those and other grounds are the subject of a pending Application by me for her to be sanctioned for such breaches.

   Subject to some very unusual circumstances, it is not the function of the court in terms of its primary obligation to apply sanctions for breaches of children’s orders.  The purpose of the exercise is to ensure that orders work.  (McClintock and Leveri (2009) FLC 93-401).

8. The father’s paragraph [7] sets the foundation for the problem that still exits 15 months later.  As I indicate below, I am satisfied that the existing orders will not be able to be implemented for so long as the father has the subjective right to determine whether conditions are fulfilled.

9. As there is no basis in the evidence to allege a contravention in terms of the present application, it must be dismissed.

The mother’s application for an “airport watch list” order

1. On 21 December 2016, the mother filed an application in a case returnable on 1 February 2017 seeking to restrain the father from taking the children from Australia.  Similar to the previous matter, it is perplexing that the court listed the application for “directions” on 1 February 2017 in circumstances where the allegation related to the moving of children out of the country.  That said, it is conceivable that the listing officer decided there was no urgency based upon the evidence provided by the mother.

2. The mother deposed to the following:

   [1]The respondent has told confidentially my brother [Mr V]…of his intention to move to [Country I] with our children so I can’t have contact with them.

   [2]He has his business in [Country I] known as [D]…and operates his company [D]…out of [Country I].

   …

   [7]He has no financial ties in Australia.

3. There were other paragraphs of the affidavit about money issues but those are not relevant to the immediate application.  Why the application was not heard with urgency, I am unable to say but equally, the proceedings seem to have been adjourned on a number of occasions without being addressed by the lawyers.  The father’s response was filed on 31 January 2017 and he sought that the mother’s application be dismissed.  He sought “indemnity costs”.  He filed that application in his own right and appeared for himself before the registrar.

4. It is unclear how he could claim costs associated with respect to the parenting matter (see Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403) but that issue is neither relevant nor was it argued.

5. By his affidavit filed 31 January 2017 in addition to what I have set out above, the father set out the history of the mother’s drug taking and matters that are not relevant to this immediate application.  In respect of the mother’s application for a watch list order, he vehemently denied plans to relocate the family overseas.

6. At its highest, the mother’s evidence amounted to an assertion based on something told to her by a person who was not a witness in the proceedings.  Whilst the rules of evidence do not apply, the weight to be given to such an unsubstantiated statement must be very low where there is a specific denial by the father but also where significant time has passed by and there has been no indication of the mother’s fear being realised.

7. Whilst an order of the nature sought by the mother could be made under s 68B or s 114(3) of the Act, it is difficult to see how, notwithstanding the time that has passed by since December 2016, without further evidence being provided by the mother, any such order could be made to restrain the children from leaving the country for such things as holidays.

8. Based on both the requirements of s 68B and s 114(3) of the Act, the evidence does not even establish a prima facie case that would justify the court examining the matter further.

9. The application of the mother filed 21 December 2016 is dismissed but so too is the father’s response filed 31 January 2015 which includes his application for indemnity costs.

The immediate parenting issue

1. By an application in a case filed 27 April 2017, the mother sought a raft of orders.  In respect of the nature and extent of her time and communication with the three children, she sought orders that would provide the children to her:

   (a)      by Facetime or Skype twice per week;

   (b)on the first weekend of the month from 10.00am on the Saturday until 6.00pm on the Sunday at the premises of the maternal grandparents; and

   (c)time during the school holidays.

2. The mother through her solicitor tendered a set of minutes which were vague in terms of the implementation of the proposals just mentioned.  I shall return to them below.

3. In addition to the orders just mentioned, the mother also sought orders for:

   (a)the appointment of a family consultant for the purposes of a s 62G(2) report “pertaining to the welfare of the children”;

   (b)in the alternative, a family consultant appointment for the parties and the children pursuant to s 11F of the Act; and

   (c)the various necessary orders for the presentation of the children.

4. Before dealing with the central parenting issue, I address this reporting issue.

5. The father opposed any further family reports on the basis that the children had been through numerous attendances and hearings and they had settled both at school and home and should not be dragged back to court. 

6. Section 62G(2) provides that the court may direct a family consultant to give a report on such matters relevant to the proceedings as the court thinks desirable.  That section is preceded however by s 62G(1) which provides that the section applies if the care, welfare and development of the child is relevant.  Apart from the father complaining about further investigation and probing of the children, the major concern of the father seems to be that the mother’s drug abuse and conduct is such that the children have been let down.  That is hardly surprising.  But so too, his insistence upon satisfying him about various orders and conditions has led to the children not seeing their mother.  There is no application for substantive relief by the mother that the children live with her.  The issue is unashamedly what sort of relationship she will have with the children in the future bearing in mind the children are settled and final orders have been made.

7. In my view, there is no trial pending in the foreseeable future nor could there be having regard to the nature of the mother’s application. It is not suggested that this case should be given a priority nor that there is any urgency about the matter but rather, from the mother’s perspective, that the 2015 orders have not been successful predominantly because there will be no agreement between the parties unless various conditions are met. There is therefore no basis for the court to seek the advice from a family consultant in the terms of s 11E of the Act. It is also important to observe that the major concern of the father is that the mother will fail to maintain any substantive relationship. Indeed, and perhaps in desperation, he indicated that he had no objections to the mother flying to Q Town and for her to have time there with the children (no doubt under his supervision) because that would be unlikely to disrupt what he described (although it is not in his evidence) the substantial activities that these children participate in. The father however is also a businessman and when absent for two days at a time, he relies upon a nanny. These children therefore seem to be accustomed to his absence.

8. In my view, there is no basis for an order under s 62G(2) at this stage because of the fact that absent an immediate trial, there is no advice required by the court. 

9. Section 11F of the Act provides that a court may make an order directing one or more of the parties to attend upon a family consultant although the provision is not clearly understood. The program is designed to give the parents an indication of how their children are seeing the dispute between the parents and to identify issues in dispute. These children have done all of that through a family report in 2015 and there is no basis to put the children through that exercise again.

10. The fundamental question is whether or not the existing arrangements should be varied so that they are successful.

Rice and Asplund (1979) FLC 90-275

1. In his affidavit which was more of an argument, the father said that the rule in Rice was well known where a court was faced with an application to change an earlier parenting order.  He quoted from Evatt CJ.  The difficulty here is not changing a parenting order so much as ensuring that there is a mechanism for the orders that were intended to work.  It is obvious from all of the material, the father does not accept the mother has made any changes to her lifestyle and therefore there is no prospect of any relationship between the mother and the children.

2. Even if that is an over-simplification, there is no doubt that the principle in Rice has been applied numerous times since it was handed down.  The principle, if that is what it is, is directed towards early dismissal or summary dismissal of applications.  The question which is entirely a matter for each court is the point at which the rule or principle is applied.  Here, there may be every reason at trial for a judge to refuse to reopen the whole parenting case.  I am not asked to do that but rather to ensure that these children have some form of relationship with their mother whilst at the same time protecting them from the harm that was anticipated by the orders of 2015.

1. The “pleadings” seeking substantive relief go back a long way and could not be seen to be ready for trial at this stage in any event.  Accordingly, there is no basis to make any of the invasive sorts of investigations contemplated by the mother but so too, there is no basis for the court to simply dismiss the mother’s plea for relief to get the current orders happening as was intended in 2015.

The nature of the mother’s application

1. I have already set out the three aspects of the mother’s application.  She seeks a block of four days during school holidays including that that occur at the home of the maternal grandparents.  Having regard to the uncertainty as to the nature of the relationship to which I turn below, a block of four days during school holidays could not be justified at this time.  The evidence upon which I am asked to make this determination cannot be tested and there is certainly no common ground between the parties.  There is no basis therefore to make the orders sought.

2. There does not seem to be any basis however to refuse to make the order for electronic communication although twice per week at the time stipulated by the mother seems excessive having regard to the extensive extra-curricular activities in which these children are involved.  The most logical immediate answer is that the court exercise its discretion and permit it to occur at 5.30pm on each Sunday.  That will obviously not occur on the Sunday that falls into the next category. 

3. The mother proposed that on the first weekend of each month, she have time from 10.00am on Saturday until 6.00pm on Sunday at the home of the maternal grandparents.  The obvious immediate difficulty with that is what sort of contact it would be and how it would operate.  There are many questions that remain unanswered.  For example, are the maternal grandparents “supervisors”?  How do the children get from Q Town to Melbourne?  Who pays for all of these travelling expenses?  Can the children fly unaccompanied?  Would the children be met by the mother or by the maternal grandparents at the airport?  How much vigilance and supervision is needed from the maternal grandparents?

4. Unfortunately, none of these questions was answered in the mother’s evidence but having regard to the nature of the statement by the father that what he wanted was the children to have a relationship with their mother, but on the basis that she was not affected by drugs, the most logical conclusion is that the children have that contact in a safe place.  I do not consider it as appropriate for the mother to attend Q Town to be supervised by the father having regard to the nature of their relationship in circumstances where they obviously cannot agree on who is right.  It is equally problematic for children of the ages of these girls who clearly know not only their mother but the nature of her addiction, to attend the sterile supervision environment of a contact centre.  There does not seem to be any financial difficulty with the children coming to Melbourne providing the maternal grandparents take a responsible role.

The grandparents

1. Although there was no affidavit material provided by the maternal grandparents, I indicated that, as the mother was saying that she was prepared to have an order that the time she spent with the children occur at the residence of her parents, it was important to understand just exactly what role was anticipated.  I would not be prepared to countenance any role other than a formal supervisory role.  For that purpose, I insisted that the solicitor for the mother call the parents as witnesses as they were present in the courtroom.

2. The maternal grandmother gave evidence that she had lost her daughter previously because of the drug addiction.  She impressed me as understanding the role that would be expected of her and I am satisfied that she recognised the nature of her daughter’s addiction.  I am also satisfied that she would do anything to protect her granddaughters.  She told me that she had endeavoured to maintain a relationship with them but had been thwarted by the father.  It is not necessary or helpful for me to make any finding in relation to that but it is clear that notwithstanding there has been quite some time since any physical contact took place, these children would be likely to be quite content to be in their grandmother’s care. 

3. The father cross-examined the grandmother and put to her a number of matters indicating that she had failed in the past to be protective of the children by allowing them to come into contact with the mother’s partner who is said to be a violent man and who also has drug convictions.  The mother is living with that man.  I am comforted by the fact that the mother agrees to an order that would restrain her from bringing the children into the company of that particular individual and clearly, that would be part of the responsibility of the maternal grandparents. 

4. Although the father said that the evidence of the maternal grandmother was different from that of the grandfather, I do not accept that there is any inconsistency.  In my view, the grandmother impressed as being a person who wanted the relationship between her daughter and her granddaughters to be resumed and could see the difficulty in it resuming. 

5. The maternal grandfather is the step-father of the mother and he gave evidence as well.  It was suggested to him that he had permitted some form of contact between the children and the mother’s partner but he denied that to be the case.  He has previous legal experience and seemed to understand the dilemma of the court and how serious the issue of supervision was.  I am also satisfied that he would take a responsible approach in the event that his step-daughter misbehaved. 

6. The grandparents therefore seemed to me to be the sort of people who would be vigilant not only to protect their grandchildren but also to assist in overcoming the impediment to the relationship between the children and their mother being resolved.  I observed the grandmother to be sensitive towards the father’s concerns and respectful of him and as such, I have concluded that they will be a significant part of the lives of their grandchildren.

7. The orders of 2015 require two amendments.  The first is to remove the requirement that there be an agreement between the father and the mother.  Secondly, the mother’s time cannot be made subject to conditions of the nature presently drafted because, as the father conceded, the sort of tests that were contemplated in [7e] could easily be manipulated.  In any event, [7e] is unclear as to whether by some self-executing arrangement, the condition expired on 31 December 2016.

8. [7a] places the mother in a position where she has to attend “weekly drug and alcohol counselling” not to mention counselling in respect of borderline personality disorder regardless of whether or not her medical practitioner considers that is appropriate.  With respect to the person who drafted that clause, albeit that the court made it as part of the conditions of the mother’s time with the children, it has no sundown provision nor any purpose if it is not controlled by the medical practitioner as distinct from the father. 

9. [7b] requires that the mother not consume any illicit substance.  It is against the law to consume illicit substance.  Contact with children should not be suspended as paragraph [7] would seem to suggest but rather, if there is a failure by the mother in her responsibilities as a parent by consummation of drugs illicitly, the time should stop.

10. Why [7b] required alcohol prohibition for a period of 48 hours prior to the commencement of contact period, remains something of a mystery. 

11. [7c] is similar in that if the mother is under the influence of illicit drugs, she would presumably not be entirely conscious that she should not be driving.  The logic of prohibiting someone from doing something which is illegal is unusual.

12. It is also inappropriate in my view that [7d] should be a condition of whether or not one period or any period of time between the mother and the children should be regulated by whether or not the mother denigrates the father.

13. To make it abundantly clear from this court’s point of view, there should be an absolute prohibition on time between the mother and the children if she is affected by drugs and/or alcohol at a period of time when she would otherwise be responsible for the care of the children.

14. I do not intend to do more than make [7] workable.

15. [7] also made no provision for electronic communication between the mother and the children notwithstanding [4] provided that the father could relocate to Queensland.  If the mother is to maintain any form of relationship with the children, part of it must be communication.  The geographic problem means that a weekly communication could only be by electronic means.  It is the father’s evidence that when the mother fails to comply with orders that would enable her to spend time with them, they become disappointed.  Thus, one might presume that electronic communication would be beneficial for them.  If set times and days are fixed, the communication lines are reopened and plans can be made for what can happen on the face to face times.

16. Electronic communication can also be problematic if it is not regulated properly.  Although not specifically stated, because the mother lives two hours or more north of Melbourne, it is impracticable for her to have that electronic communication at the home of her parents.  It is critical that the mother be conscious that the orders that I propose to make, and which she promoted, include an injunction from bringing her partner into contact with the children and that includes the electronic communications.  So too, the father must permit the children the freedom to communicate with their mother without interference and if that is not to be the case, evidence can no doubt be led at a trial relating to the issue of parental responsibility.  Equally importantly, the mother cannot afford to fail and needs to ensure that she is attentive at the relevant time and day. 

17. Whilst the face to face contact may be onerous, that can only be so because the children have to travel and the father has to get them to and from the airport at the Queensland end.  It will be a matter for him as to whether or not he accompanies the children on the flight to Melbourne.  The children must be met at the Tullamarine airport and returned there for the relevant flights by their grandparents or either of them and only under those circumstances, can the mother be present.   Having accepted their evidence about the importance of their role, one weekend per month until the trial of all outstanding issues, ought not to be that inconvenient. 

18. In saying that, I acknowledge that these children are heavily involved in extra-curricular activities in Queensland.  I had the strong impression that the father was of the view that any contact of the nature I contemplated would be likely to clash with the extra-curricular activities of the children.  It seems that the mother will need to factor that in when she discusses issues with the children but from this court’s point of view, the developing of a relationship with their mother now is more important than their social activities which can be built up in years ahead.

19. The father suggested that the mother could come to Queensland but as I earlier observed, that is fraught with difficulty having regard to the nature of the parents relationship.

20. It was the father’s evidence that there is a long history with much involvement of experts and that the mother had failed these children badly.  The mother’s evidence which is supported by the maternal grandmother is that in June 2016 she was requested to undergo a drug screen and she complied.  It produced a negative result.  She then started an intensive recovery and support program at W Hospital, Melbourne which ran for two days per week for eight weeks.  She produced a letter from the hospital which was complimentary and corroborative of her attempts to stay away from drugs.  In her affidavit sworn 26 April 2017, she deposed to the fact that she had not taken illicit substances since mid-June 2016. 

21. The mother gave evidence that she is living in a rental property and has joined a local church.  She has obtained employment during and has started a course at the local TAFE college in X Town involving study of three days per week.  She said she is regularly attending the gymnasium each week as well volunteering in a local program. 

22. In October 2016, according to the mother, she began attending a local drug and alcohol service and she produced a letter to confirm those attendances. 

23. The maternal grandmother confirmed that so far as she could say, her daughter was a changed person.  I very much understand that the father will have great difficulty accepting that but with a trial pending, two things are important.  First, any relationship that can be fostered with the children needs to be done now.  The father is correct that these children have suffered the ignominy of having a mother addicted to drugs and have been bitterly disappointed from time to time.  The mother cannot afford to allow that to happen again to the children.  The second point is that if she continues with her application for a more substantive role in the lives of the children at any forthcoming hearing, the evidence of what happens over the ensuing months will be fundamental to the question of the success of her application. 

24. Section 60CC(2) requires the court in determining the best interests of the children to balance the benefit that they have in having a meaningful relationship with their parents whilst at the same time requiring the court to look at the protective issues associated with family violence and abuse.  To the extent that there is a conflict between those two “pillars”, clearly the protection of these children holds sway.  In my view, the evidence of the parents which to a very large degree corroborates that of the mother, must mean that the children should be given the benefit of an opportunity to have that meaningful relationship with their mother on the basis that it is hardly likely to adversely affect their relationship with their father. 

25. The father’s evidence as set out in his affidavit of 22 May 2017 makes his position very clear.  He has justifiably been frustrated by what he described as “continuing drug relapses” and the effects of those on the children over the past seven years.  His major complaint is that the mother has not continued with what he sees as appropriate rehabilitation.  He pointed to what he described as six years of voluminous reports all of which ended, as best I can determine, with incidents in 2016.  His view is that the mother has not been honest about her drug dependency including lying about taking the drugs.  He pointed to past episodes but those all precede the period of the middle of 2016.  He methodically set out the history most of which was addressing the question of the mother’s refusal to participate in what he saw as appropriate treatment.  He made reference to an email between himself and the maternal grandmother in September 2016 which addressed the concerns she had about the relationship of her daughter with Mr T her partner.  That email went on to say however:

    (The mother) is living with us and is attending [W Hospital]’s highly recommended drug coarse (sic) and attending all connected groups.  We have met with her coordinator as well as her psychiatrist.  She is doing very well and holding down a job.

26. Whatever the nature of the relationship was between the mother and Mr T, her evidence is that he too has changed.  My concern is more that the mother has agreed for her partner not to be involved in the lives of the children and has agreed to an injunction to that end. 

27. All of the evidence points to the fact that the mother has made a significant step forward yet she faces the unenviable task of endeavouring to convince that father. 

28. [7] of the orders of 2015 thwarts those attempts.  In my view, there is little likelihood of agreement between the parties and the conditions are now not just onerous, but inappropriate.

29. Orders under those circumstances are necessary.

30. I do not intend to address the s 61DA provisions as those matters have been dealt with in the final hearings previously and importantly, the father’s entitlement to sole parental responsibility has not been challenged.

31. I am satisfied that the proposed order with appropriate conditions is in the best interests of the children. 

Transfer to Brisbane

1. It is also the father’s application that parenting matters, as distinct from the property matters be transferred to the Brisbane Registry of this court.  His justification for that proposal was that the applications of the mother were causing the children the major disruption and him an enormous expense.  The difficulty is that if the application of the mother proceeds and the father desires to call all the experts that he seems to heavily rely upon, they are all in the Melbourne environs.  There is not a problem here with the funding of travel and any hearing would be relatively short and confined to issues associated with contact rather than a residence dispute.  For the reasons I have already set out, I doubt very much whether a family report is going to be of any assistance to the court but that will depend very much upon whether or not the relationship which the mother is endeavouring to foster, actually works.  If the children are resistant to that relationship, the court may be entitled, let alone obliged, to investigate why that is so.

2. Rule 11.17 of the Family Law Rules 2004 provides that a party may apply to have a case transferred to another registry. If that application is made, as here, the court has a number of factors that it may consider.  Of those factors, the most significant concern the complexity of the facts, legal issues, remedies and procedures involved.  In relation to factual disputes, as I have already said, most of the witnesses will be in Melbourne.  To the extent that there is a concern that the children may be involved in any family report, there is no logical reason why that cannot be done through the auspices of the Brisbane Registry family consultant services.  That evidence could be given by video link in due course as well.

3. It is interesting however that the father only wanted the parenting issue transferred to the Brisbane Registry which would mean that the file would then be in two different places.  The father has lawyers representing him in Melbourne for the purposes of the property matters and as such, that proceeding will be continuing in Melbourne. 

4. In my view, there is no reason why the court should separate the two proceedings out and certainly no basis to say that a hearing in Brisbane would be more efficacious than in Melbourne.  That part of the father’s application must be dismissed.

Vexatious litigant

1. In his application filed a response on 22 May 2017, the father sought an order that the mother be restrained from bringing proceedings without leave of a judge.  His affidavit in support of the application however asked that the mother be treated as “a vexatious litigant”.  The affidavit referred in three paragraphs to her “constant lodging of applications” which had no merit and were only to be of a nuisance value to him and as such, a complete waste of the court’s time.  Having regard to the views that I have expressed above about the issues of the children, in my view there is no basis to say that the mother’s application has no merit and whilst they may have been of nuisance value to him, they were certainly not a waste of the court’s time.  I acknowledge readily that the court has not expeditiously dealt with all of these problems but I have endeavoured in these complicated reasons to have addressed that.

2. The father went on to say that the mother had not provided any evidence which was new or extraordinary but I disagree.  This is the first time that I can understand that there is a wind of change occurring and it may be that that evidence needs to be tested at trial.  In the meantime, the orders that I propose to make provide the safety protection for the children even if they do provide some inconvenience to the father.

1. Although the father did not address it, s 102Q of the Act applies in respect of an application to have a litigant declared a vexatious litigant. Under that section, vexatious proceedings includes:

   (a)proceedings that are an abuse of the process of a court or tribunal;  and

   (b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

   (c)proceedings instituted or pursued in a court or tribunal without reasonable grounds; and

   (d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

   For the reasons I hope have been made clear, nothing I have read indicates that the mother has been involved in any of those sorts of processes. I am not entirely sure whether the father intended his application to be made under s 102Q because there is also the provision in s 118 of the Act which provides that at any stage of the proceedings, if the court is satisfied that those are frivolous or vexatious, it may dismiss the proceedings. Thus, should the mother’s proceeding not be serious, indicated by whether she fulfils the obligations created by these orders, the father would then be entitled to bring an application under s 118 for the dismissal of those proceedings. However, there is not sufficient evidence to justify a conclusion at this stage that the mother is acting in a vexatious way. That application must fail. Accordingly, I make the orders at the commencement of these reasons.

I certify that the preceding Eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 July 2017.

Associate: 

Date:  21 July 2017