Firmin and Curtin

[2019] FamCA 142

FAMILY COURT OF AUSTRALIA

FIRMIN & CURTIN [2019] FamCA 142

FAMILY LAW – CHILDREN – Parenting – Mother’s sworn evidence failure to disclose details of her proposal – Court not able to make a decision without further information.

APPLICANT: Mr Firmin

RESPONDENT: Ms Curtin

INDEPENDENT CHILDREN’S LAWYER: Ms Schuck

FILE NUMBER: MLC 7934 of 2016

DATE DELIVERED: 13 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sweeney

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Tulloch

SOLICITOR FOR THE RESPONDENT: MST Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Bowlen Dunstan & Associates

Orders

1. This matter be adjourned for mention before me on Wednesday 20 February 2019 at 9.00 am.

2. The proceedings this day be transcribed and a copy placed on the Court file.

3. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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 Firmin & Curtin 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 7934 of 2016

Mr Firmin

Applicant

And

Ms Curtin

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me on the final defended hearing of parenting proceedings concerning X, who is six and a half years old.  The parties have had two full days of negotiation, with the assistance of the independent children’s lawyer.  Today, they reached agreement about a number of issues, and were able to describe the matters in respect of which there was no agreement.  The latter is in the terms of exhibit M1, and the agreed matters (although incorporating also some of the matters not agreed to) are in exhibit F1.

2. It was a joint application by all parties that I hear submissions in relation to the matters not agreed, and then deliver short-form reasons and orders in relation to those issues.  As part of that process, there was also to be evidence by the mother, and I have received that evidence today, and I will order a transcript of it.

3. This is a case where the mother’s dependability, responsibility, insight, are all in issue.  She has a treating psychiatrist, Dr B; and both parties have been assessed by Dr E.  The firm allegations against the mother are, thematically, that she is impetuous, ill considered; makes significant decisions without notice to other people, such as the father and does not consult with him in a manner which is in the best interests of X. 

4. The mother’s case, as set out in her affidavitory evidence is that her household, which includes her other children, is located proximate to X’s current school which he will continue to attend in 2019.  The mother specifies a school at which X’s older siblings will attend also close to her existing residence.  The mother is the registered proprietor of the family home.  However, it has come to light as recently as today that weeks ago the mother committed herself to lease another property on the other side of the city from where household is located.  She has also enrolled the older siblings, not the subject of this proceeding, in other schools than the school described in her affidavit.  The mother’s evidence was that she had not told the father of these developments and expected that he would become aware of X’s relocation to the other side of the city once it occurred.  She testified that it would occur soon.

5. I have ordered a transcript of the mother’s evidence so I will not recite the evidence any further, the transcript will speak for itself.  It is important for the transcript to be available because the manner in which the mother gave evidence today may be viewed as being as significant as to the content of the evidence.

6. When pressed about the complications of her deception, the mother said that, if she is required to keep X at his current school, she will do so but will travel every day to the other side of Melbourne to collect another child and to Suburb C for another child.  On anyone’s calculation, X will be spending a phenomenal amount of time in the car.  

7. In light of the mother’s proposed compliance with the agreed orders being premised on a very inconvenient or unworkable arrangement for getting all children to and from school, I am not satisfied that I could make parenting orders today in the terms upon which the parties have indicated they agree; indeed, I will not do so.  The manner in which the mother proposes to accommodate a condition whereby X continues to attend his current school is, on the evidence, unworkable and doomed to fail.  I also consider that it puts X in harm’s way having regard to increased parental conflict and inevitable further litigation which will undoubtedly ensue.

8. It seems to me that there are two things that have not been done in this case, which are now fairly urgent. 

9. The first is, there needs to be an assessment of the outcome for X, psychologically and emotionally, in the event that he was to be placed in the predominant care of the father; and, if that is to occur, what if any steps by way of transition could make that process easier for the child.  The evidence, as I understand it at the moment, is that X does not wish to reside with his father; that he would miss terribly the three or four siblings in his mother’s household; and that he would miss his mother to a very great degree.  I can infer from that evidence that the psychological and emotional outcome for X might not be good, or it might be harmful; but there is nothing to tell me how such harm could, in any sense, be ameliorated.

10. The next matter which needs urgent attention is the support of the mother.  She has run and presented her case, including the filing of extensive affidavit material, failing to disclose what were longstanding and definite and partially implemented plans for her to move away from her current residence, make the attendance by X at his current school impossible.  In fact, her affidavit material said positively that she would continue to have X attend at a school, Suburb F Primary School, and have his siblings closest in age attend at a suitable school in Suburb D, when she in fact has no intention of doing that, as of today.  There is a compelling need for the court to have evidence about what services the mother and the family can be linked into, such as may assist or facilitate her being able to remain in the Suburb H area where she currently resides, and where X attends school.

11. A very significant impediment to the mother doing so, according to the mother, is the availability of suitable schools for her 13 year old twins, who each have special needs but, she says, high intellects, which make them eligible only for special schools that dispense a certain standard of education.  The mother’s evidence is that it is for the good of the older boys that X must move to Suburb G as their needs cannot be met by any schools other than the two schools in which she is ready to place them.

12. The other aspect of significance to the mother, in accordance with today’s evidence, is the safety of the property in which she currently resides.  She purchased this property off the plan and the family moved into it about a year ago.  She says today, in the witness box, that it is not a safe house for the children, in particular the 13 year old twins.  That appears to be another relevant aspect about which she gave no evidence in her affidavit.

13. The co-located worker from DHHS has attended Court (that is Ms T) and sat in the witness box, without being sworn, and gave some indication of how she might assist the Court.  She is available next Wednesday, and the Court is grateful for her availability today, and whatever information she can find out for the parties in advance of next Wednesday and advise them, and then what she can tell us at the mention at 9 o’clock.  The mention at 9 o’clock will not go past 10 o’clock.

14. I will not make any parenting orders today, so there are no new parenting orders.  The orders sought by consent were predicated on a determination of several outstanding issues on which the father and mother cannot agree.

15. There is an oral application by the father for an extension of time with X.  I have not granted leave for that application to be made today.  If it is pursued, I see no reason why it could not be made in written form, and everyone be given notice, and be the subject of submission on the next date, so that the matters that should be determined on the next occasion are procedures which might render enough evidence upon which I can make parenting orders which I am satisfied are in X’s best interests.

16. That involves evidence about DHHS or other agency support for the mother, and the availability of special schools for the mother’s older children in the area in which she currently resides, in Suburb H; and the availability of evidence in relation to the effect on X of moving from the primary care of the mother to the primary care of the father, and what if anything can be done to ameliorate any adverse psychological or emotional implications for the child.  In that last respect, I do not exclude the possibility of a report being ordered to be prepared by a family consultant attached to the Registry, in addition to the evidence that we already have from Dr J.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 February 2019.

Associate: 

Date:  15 March 2019