Gelder and Gelder

[2019] FCCA 3390

FEDERAL CIRCUIT COURT OF AUSTRALIA

GELDER & GELDER [2019] FCCA 3390

Catchwords:
FAMILY LAW – Parenting – interim orders – where shared care arrangement already in place – where mother and children moved out of family home – where children reacted adversely to move – allegation by father of unacceptable risk of harm and inability of mother to care for children – application by father to transfer matter to Family Court – best interests of the children – family report ordered – interim application dismissed.

Legislation:

Family law Act 1975 (Cth)

Applicant: MR GELDER

Respondent: MS GELDER

File Number: ADC 1375 of 2019

Judgment of: Judge Young

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Adelaide

Delivered on: 29 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Boehm

Solicitors for the Applicant: Douglas Hoskins Legal

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Jacqui Ion Lawyers Pty Ltd

Counsel for the Independent Children’s Lawyer: Mr Hemsley

Solicitors for the Independent Children’s Lawyer: Legal Services Commission Noarlunga

ORDERS

1. That the father’s interim application be dismissed.

2. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born … 2008 and Y born … 2010 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 December 2019.

3. That 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 sections 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.

4. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

5. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

6. That 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.

7. That 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 child/ren 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.

NOTING:

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

B.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.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 7 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is adjourned to 27 February 2020 at 9.30am for further consideration.

THE COURT NOTES:

That in the event the parties obtain a private family report the parties will advise Chambers and the Court ordered family report will be vacated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1375 of 2019

MR GELDER

Applicant

And

MS GELDER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting application concerning X who is 11 and Y who is nine. I might say that there are two other children of these parties, Ms A who I am told is 18 and Z who is 17. Those children, or Z at least, is not the subject of these proceedings.  The parties until last year had agreed on a shared care arrangement with these children or at least a shared care arrangement was in place. In the first half of this year, in May, there were a series of events which, without purporting to describe them with great chronological accuracy, involved the following elements.

3. The mother and the children who occupied the former matrimonial home after separation moved out of the home in circumstances that are somewhat disputed. There does seem to be some indication that the children, particularly X, reacted very adversely to his sister, him and his mother moving out of that home. It appears to have been following a property settlement between the parents, at least an informal one.

4. From that time, there appeared to be indications of, if not before but certainly from around about that time, a breakdown in the relationship between X and his father. In particular with X laying some blame on his father for, as X put it at one point, his mother and his sister being “kicked out” of the house. I do not suggest that that is in any way a fair characterisation of what happened but it is significant perhaps that X saw it that way. It may be that X’s emotional difficulties predated that. The evidence does not make that entirely clear.

5. I think it is reasonably clear that the difficulties predated that because there is a Department of Child Protection (“DCP”) file and it is clear from that file that the Department have been involved with this family since at least April 2018. Many of the notes from the DCP file really refer to X’s distress over a variety of things but, broadly described, X’s distress stemming from the conflict between his parents. When I say distress, I mean distress at a very high level involving threats of self-harm and, indeed, as recently as June of this year, actual self-harm by X where he was reported in a discharge note from the Women and Children’s Hospital to have harmed himself causing a superficial laceration on his arm.

6. The mother says that that was because of X’s distress at being required to spend time with his father. The precise reason for the breakdown in the relationship between X and his father and, to some extent, Y, is not entirely clear on the materials. There are various suggestions, particularly in the DCP material, that the children, Y and X especially, see themselves as being responsible for what may be their mother’s distress flowing from the break-up of the marriage and instability in housing in particular.

7. There is also some indication, but nothing more than an indication, in the DCP material that it was suspected that the mother suffered from some mental illness at some point. Again it is quite unclear whether or not she does. I am satisfied there is no clear evidence at this stage. There is a reference in a DCP note to the mother being suspected of having “BPD”, standing for borderline personality disorder, but, as I said, there is no evidence that that is the case at all.

8. As part of this mix, particularly X’s distress, X was displaying dysregulated behaviour at school, threatening or striking other children and the like. It also appears around about this time, particularly around April 2019, before the consent orders in this matter were made in May 2019, that the children were being withheld from school by their mother. The DCP notes seem to suggest that that was deliberate and that the reason for that was a concern or fear of the mother or the children or both that the father would go to the school and remove the children. The evidence at the moment is that X has changed schools and is currently attending school though I do not have any objective or independent evidence about that before me.

9. In the DCP material the suspicion is raised that much of X’s emotional distress is, as I mentioned, arises from a concern about his mother. There is also some indication of a suspicion that he is adopting what might be called a parental-style relationship to his mother, that is, an inappropriate concern for her wellbeing in the sense that he feels entirely responsible for her distress and maintaining her wellbeing and that in turn is affecting his own wellbeing.

10. I say “suggest” or “indicate” because what is abundantly clear from the material in front of me is that there are many allegations about the mother’s parenting capacity, about the cleanliness of her home, and about the reasons for X’s distress that are not supported by particularly objective evidence. Similarly, there are allegations against the father about family violence. He denies those and I am told that the present interim intervention order will be contested by him but I am not told when that is likely to take place.

11. The father’s allegation is that the DCP material in particular gives rise to evidence of an unacceptable risk of harm should the children be permitted to remain in their mother’s care pending trial. I acknowledge that in the material there are very worrying allegations against the mother, very worrying suggestions about the cause of X’s emotional and mental distress, particularly inappropriate exposure to parental conflict, but as I have indicated in the reasons I have given so far, I consider that much of the material is largely untested allegation.

12. I do not feel confident having read this material that I can proceed with the requisite degree of satisfaction that the matters alleged by the father giving rise to the unacceptable risk, particularly, the mother’s mental health, uncertain accommodation, failure to have the children attend school, the mother’s negative influence on the children and exposing them to conflict, withholding them in breach of orders or withholding the children, at least from school, and X’s threats of self-harm are all matters that require an immediate order changing the living arrangements for both children.

13. I think those are quintessentially matters for trial. I should also say that I am satisfied that there is independent evidence that X has been highly resistant at various times to spending time with his father or at least he has told independent observers, including a family consultant in a section 11F report, that he did not want to see his father and that he was scared of him. The father says when X and Y spend time with him that is not the case at all.

14. The children in the 11F report seem to acknowledge some truth in that because they said that they simply pretended to enjoy their time with their father.  I am uncertain how such a statement from an 11 year old child (and Y made the same statement) should be treated. X goes on to give the family report some quite specific reasons why he does not want to go to his father’s and why he is angry with his father, including having witnessed the father assault Ms A, the 18 year old daughter. Again, as I say, these are matters that I do not believe that I can safely form any particular view about, even for the purpose of an interim hearing.

15. In relation to the particular allegations the father makes, I am satisfied that X cut himself, albeit superficially, on 27 June 2019. I consider that a matter of very grave concern. As for the allegations about the mother’s housing, for example, I notice that when the DCP workers inspected the mother’s home that it was found to be clean and hygienic.

16. I am not satisfied that there is sufficient evidence of unacceptable risk for me to make the orders sought by the father and I consider that a proper assessment of the best interests of these children can only be made after the preparation of a family report and if necessary the testing of evidence at trial. I dismiss the application.

17. There is a second application on foot by the father that this matter be transferred to the Family Court. Mr Boehm said the matter would take more than four days and therefore comes within the ambit of point 8 in the protocol between the Courts. Mr Hemsley also agreed that the matter would take four days. Ms Lewis, while she did not directly address the question of the likely duration of any trial, suggested that the matter ought to be put off until after the preparation of a family report when, she submitted, the issues to be determined at trial would be clearer.

18. I consider there is some merit in that submission and I do not propose to transfer the matter at this stage. I will reconsider the matter after the receipt of a family report. It may be that if by that time I am satisfied that the matter is definitely likely to take more than four days it might be appropriate to transfer it.

19. I will make the orders dismissing the father’s interim application. There will also be an order for the preparation of a family report.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 21 November 2019