GRAFT & MCCORMICK - [2015] FamCA 121

FAMILY COURT OF AUSTRALIA

GRAFT & MCCORMICK

[2015] FamCA 121

FAMILY LAW – CHILDREN – With Whom a Child Lives - Where mother sought order varying current orders which provide for the children to live with the father and spend time with the mother - Where father in his response seeks to suspend the mothers time with the children until trial - Where previous final consent orders were varied at a contested interim hearing resulting in the current orders - Where Court questioned whether there was sufficient change in circumstances to justify further interim litigation - Where Court noted that in interim proceedings a court is inevitably not able to test the veracity of allegations and is unable to make findings of fact unless agreed or uncontroversial - Where Court not satisfied a revisitation of the orders made is justified - Where parts of the Amended Application and the Response which seek to re-agitate interim children’s orders is dismissed.

FAMILY LAW – CHILDREN – Parental Responsibility - Where father in his response seeks to vary the current orders by changing the present equal shared parental responsibility to sole parenting responsibility in his favour - Where Court questioned whether there was sufficient change in circumstances to justify further interim litigation - Where Court not satisfied a revisitation of the orders made is justified - Where parts of the Amended Application and the Response which seek to re-agitate interim children’s orders is dismissed.

FAMILY LAW – CHILDREN – Family Consultants - Where mother seeks order that the family report writer not be allowed further contact with the children - Where mother appears to be of the view that the family report writer has some predilection against her and is perhaps not bringing an open mind to proceedings - Where material before the Court does not support the mother’s views - Where relevant part of the Application dismissed.

FAMILY LAW – CHILDREN – Child Related Proceedings - Where mother seeks order that the father’s solicitors and the Independent Children’s Lawyer be stopped from obtaining any further reports until current allegations can be subject to cross-examination at trial - Where Court noted there was no substance in the matter complained of - Where relevant part of the Application dismissed.

FAMILY LAW – CHILDREN – Child Related Proceedings - Where mother seeks a review of the refusal of Registrar to permit the filing of a Contravention Application and an affidavit in support thereof - Where the filing of such was expressly rejected on the grounds that it breached Family Law Rule 24.10(1)(e) - Where allegations made against judicial officers and solicitors - Where Court noted a recurrent theme within the affidavit is that there is collusion between the father, his solicitors and the Court and perhaps the Independent Children’s Lawyer - Where Court noted that on the material in the affidavit there is no specific evidence which would legitimately found such serious complaints - Where Court noted the Registrar was right to reject - Where relevant part of the Application dismissed.

FAMILY LAW – INJUNCTION – Where mother sought injunction restraining the father and the father’s solicitors from conducting themselves in ways alleged by her - Where Court noted that the mother did not have the benefit of legal representation - Where Court unable to discern on the material before it, anything from which it could be either concluded or inferred that conduct had been engaged in so as to warrant the ordering of an injunction - Where relevant parts of the Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks order that the children be allowed to speak to the judge on their own behalf in a closed courtroom - Where Court of the view that in this case it is inappropriate for the children to speak directly to the trial judge - Where Court declined to make such order - Where relevant part of the Application is dismissed.

FAMILY LAW – COSTS – Where mother seeks costs and compensation - Where no basis for either - Where Application dismissed.

Family Law Act 1975 (Cth) 65DAC
Family Law Rules 2004 (Cth) r 24.10

APPLICANT:

Ms Graft

RESPONDENT:

Mr McCormick

INDEPENDENT CHILDREN’S LAWYER:

Patricia Cope

FILE NUMBER:

CSC

301

2009

DATE DELIVERED:

2 February 2015

PLACE DELIVERED:

C Town

PLACE HEARD:

C Town

JUDGMENT OF:

Tree J

HEARING DATE:

2 February 2015

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Haddrick

SOLICITORS FOR THE RESPONDENT:

Preston Law

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cope Family Law

Orders

BY CONSENT IT IS ORDERED THAT:

Order 3 of the Orders of Judge Willis made 10 May 2013 be discharged.

AND IT IS FURTHER ORDERED THAT:

The applicant’s Amended Application in a Case filed 29 January is dismissed.
The Independent Children's Lawyer is to use her best endeavours to organise psychiatric assessment of each party, and the parties are to cooperate with reasonable requests made of them by the Independent Children's Lawyer in relation to that assessment.
The respondent’s Response to and Application in a Case filed 30 January 2015 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft & McCormick 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 C TOWN

FILE NUMBER: CSC 301 of 2009

Ms Graft

Applicant

And

Mr McCormick

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By her Amended Application in a Case filed 29 January 2015, the mother seeks to vary the present regime of orders pursuant to which the children the subject of these proceedings live with the father and spend time with the mother. By his Response to that Amended Application filed 30 January 2015, the father also seeks to vary those parenting orders, by changing what is presently equal shared parental responsibility into sole parental responsibility in his favour, and suspending the mother’s time with the children until trial.
The orders which underpin the present regime have their genesis in final consent orders made by Willis FM (as her Honour then was) on 27 February 2012. Those orders afforded equal shared parental responsibility for the two children the subject of these proceedings, and provided, in substance, for equal time being spent by the children with each of the parents. Subsequent to those orders, the mother relocated to a property sufficiently far from where the children had been living with the father, such that those orders could no longer operate in practice.
That then led to a contested interim hearing before Willis J on 10 May 2013 in consequence of which the orders were varied so that the children spent one‑half of school holiday time with the mother, but that otherwise the orders of 27 February 2012 remained in force. Since then the matter has proceeded towards hearing, albeit that on the occasion when it was anticipated that the hearing would commence, or shortly prior to it, apparently because of the estimated length of time of the hearing, the matter was transferred to this court.
At the outset of the hearing today in relation to the variation of children’s orders, I invited the parties to explain to me the basis upon which they contended that there had been a sufficient change of circumstance since 10 May 2013 to justify further interim litigation in relation to parental responsibility and with whom the children should live. The mother listed four matters.
The first was that she was concerned about the children being exposed to sexualised behaviour or, indeed, sex acts when in the father’s care. The second was that the children’s wishes have changed. The third was that the children’s school had changed from B School to a school in C Town, and the fourth was that the father was not following the orders.
Before I descend to considering each of those in detail I should, at the outset, say what is commonly said in applications such as this, namely that in interim proceedings, a court is inevitably not able to test the veracity of allegations and therefore, in relation to matters such as the children’s alleged exposure to sex, or that the father is not following orders, where they are roundly denied by the father, no finding of fact can be made unless it is agreed or uncontroversial. Therefore, for instance, the mother’s assertion that the children’s wishes are that they live with her is not accepted by the father. I cannot determine on an interim proceeding such as this whether indeed that is, as a matter of fact, correct.
I turn then to discuss the four matters as relied upon by the mother. The first is her assertion that she is concerned about the children being exposed to sexual behaviour. The father denies this and plainly the mother has no direct first-hand information of that herself. I cannot conclude on the material before me that, as a matter of fact, the children have been exposed to sexualised behaviours or sex acts by the father. Therefore, I cannot be persuaded that that change has occurred as a matter of fact.
Turning then to the children’s wishes, the mother asserts that the children have expressed wishes to live with her and not with the father. That is plainly not what they told the family report writer, Ms D, in May 2014 and, in any event, the father does not accept that the children have so expressed wishes to the mother. To the extent that there is any relatively objective material, it is in the form of Ms D’s report. However, I am not yet persuaded that the children’s wishes have been accurately expressed to anybody. That is a matter that can be explored at trial. Certainly, I cannot accept on an interim basis that the children’s wishes have been articulated, as the mother asserts.
The third is that the children’s school has changed. That is undoubtedly correct. At the time of the orders of 10 May 2013, the children were attending B School. Since then the father has moved them from B School. However, I am not satisfied that the change of schooling is of sufficient significance, such that it would permit re-litigation of the children’s living arrangements and parental responsibility for them.
The fourth point is that the father is allegedly not following orders. The father does not accept that. I am unable to determine whether the father is in breach of any orders and, if he is, whether he has a reasonable excuse for it. In any event, I am not able to identify whether, even if there are breaches of orders, that they are of a sufficient moment that could justify re-litigation in relation to interim parenting orders.
I then turn to the matters relied upon by the father as justifying re-litigation of interim children’s parenting orders. The first is that the mother has refused to attend for a psychiatric assessment. There have, over some years, been concerns as to the mother’s functioning, and I am not satisfied that those concerns have only arisen since 10 May 2013. True it may be that the mother has never been previously formally asked to submit to a psychiatric assessment prior to then. However, I am not satisfied that the mother’s simple refusal to attend a psychiatric assessment is a sufficient change in circumstance to justify re-litigation.
In any event, I note that one of the specific orders that the father is seeking in his response is that the mother be required to submit to a psychiatric assessment. I will determine that application in due course if required.
The next matter relied upon by Mr Haddrick, who appeared as counsel for the father, was that the father has been unable to get the mother to agree in relation to certain matters. The specific matters that Mr Haddrick directed my attention to relate to, principally, the negotiation of the time over the Christmas holidays that the mother was going to spend with the children, and some unilateral statements on the part of the mother to both the father and his solicitor that she does not intend to communicate with the father until the court proceedings have either been initially dealt with by the court, or finally dealt with by the court. (It is not altogether clear from the correspondence what she was intending). The orders are plain that in relation to day-to-day matters, when the children are in one or the other party’s care, it is for that person to make the relevant decisions. It is only in relation to major long-term issues that consultation is required.
I accept that section 65DAC of the Family Law Act prescribes how it is that parental responsibility for major long-term issues in relation to a child is to be exercised. However, nothing in the material that was referred to me by Mr Haddrick seems to be germane to the sorts of matters that would be dealt with by the exercise of parental responsibility of the kind covered by section 65DAC. Rather, to the extent that there was specificity, it related to the negotiation of time that the mother would otherwise have been able to spend with the children over the holidays. In my view that of itself is insufficient change, even accepting that it is a change at all, to warrant re-litigation in relation to parental responsibility, or the suspension of time that the children spend with the mother. Such a suspension of time would be a serious curtailment of the children’s experience of their mother, and in that regard I note the somewhat touching observations of Ms D of the interactions between the mother and the children when she saw them a little under a year ago, when the last Family Report was prepared. It would be a serious matter to curtail the time that the children spend with their mother, given that it is relatively meagre in any event.
The fourth matter relied upon by Mr Haddrick was the expiration of time, in that the parties have once, or perhaps twice, been at the starting gate for a hearing and that there has been a considerable effluxion of time since the interim orders on 10 May 2013. Mr Haddrick conceded that was a weak point. Indeed it is. Unless there is something more than the expiration of time, in this context there would need to be some event or some issue which had arisen in consequence of the expiration of time, not the expiration per se.
Whether individually or collectively, I am not satisfied that the eight matters identified by the parties as justifying the revisitation of interim orders made in these proceedings on 10 May 2013 are of a sufficient moment. I am not persuaded that the parties should be permitted to re-litigate interim orders in relation to children, at least in the context and content that they presently seek to do. It follows then that by reference to the application, those parts of the applications which seek to re-agitate interim children’s orders will be dismissed. Particularly, paragraphs 3, 4, 5, 9 of the mother’s Amended Application will be dismissed and paragraphs 3 and 4 of the father’s Response filed 30 January 2015 will also be dismissed.

RECORDED : NOT TRANSCRIBED

By Amended Application in a case filed 29 January 2015 the mother sought a suite of orders which have come on for hearing before me today in a duty list.
Amongst the orders which she seeks are orders 7 and 8 which provide as follows:
(7) the father and his solicitor Preston Law be refrained from intimidating, threatening and bullying the children and interfering in these proceedings on the children’s behalf.
(8) that the father and his solicitor Preston Law be made to conduct themselves in the appropriate manner in relation to the orders in the Family Law Act.
The mother does not have the benefit of legal representation and appears to have considerable difficulty in, firstly, marshalling her material within a structure which would enable to one easily identify the material relevant to the particular orders which she seeks, and secondly, in directing submissions that are relevant to the matters under consideration. I say that not as any criticism of her, but rather to emphasise that, as is frequently the case in proceedings such as this, where emotions are inflamed and parties don’t have the benefit of legal representation, they can do a disservice to their case which is unfortunate, because it detracts from what might otherwise have been a reasonably arguable position.
Doing the best I can given those limitations, I am unable to discern on the material that has been placed before me, anything from which it could reasonably be either concluded or inferred that the solicitors for the father, or indeed, the father himself, have acted in a way which would cause me to issue an injunction restraining them from conducting themselves in the ways that the mother seeks me to enjoin them from doing.
Paragraph 7 and 8 of the Amended Application filed 29 January 2015 will be dismissed.

RECORDED: NOT TRANSCRIBED

By paragraph 10 of her Amended Application filed 29 January 2015 the applicant mother seeks an order that the children the subject of these proceedings be allowed to speak with me on their own behalf in a closed courtroom. Although I am conscious that one of the considerations that the Court is obliged to take into account is the wishes of the children, and I am conscious that perhaps one or two judges have had an intermittent practice of speaking with children, I am firmly of the view that, in this case at least, it is inappropriate for the children to speak directly to the trial judge and I decline to make any such order. Paragraph 10 will be dismissed.
By paragraph 11 of her Amended Application in a Case filed 29 January 2015 the mother seeks orders that the family report writer, Ms D:
...not be allowed further contact with these children.
She appears to be of the view that Ms D has some predilection against her and that she is, perhaps, not bringing an open mind to the proceedings.
An analysis of Ms D’s affidavit filed 12 May 2014 would make that conclusion a difficult one to support. Particularly, she recommended, ultimately, that the children live with the father and spend half of the school breaks with the mother, but that in the event that the mother lives within a reasonable commuting distance of the children’s school, that they return to a week about arrangement. Those recommendations are, whilst perhaps not palatable to the mother, nonetheless indicative of the fact that the father, on her view – which is yet to be tested – presents as a good carer for the children and, indeed, has been the carer of the children since the mother unilaterally relocated from the E Town to F Town, and that the mother has much to offer these children, to the point where Ms D is of the view that a shared care arrangement would work in the event the parents were living close enough to each other to make that practicable.
That, to my mind, does not suggest that Ms D has brought anything other than an open mind to bear in relation to her professional engagement in this case. Paragraph 11 of the Amended Application will be dismissed.
By paragraph 12 of her Amended Application in a Case filed 29 January 2015 the mother seeks an order that Preston Law or the Independent Children’s Lawyer be stopped from obtaining further reports until current allegations can be the subject of cross-examination at trial.
In my view, that order contains its own answer; namely, that the factual basis for the expression of opinions in expert reports is a legitimate matter for cross-examination at trial, and, in the event that a report is founded upon incorrect matters of fact, necessarily the weight which it would otherwise attract is substantially reduced and perhaps wholly destroyed. Factual inaccuracies can be subject of cross-examination at trial. There is no substance in the matter complained of by paragraph 12. It will be dismissed.

Paragraph 13 of the Amended Application seeks costs and compensation. There is no basis for either, and paragraph 13 will be dismissed.
By paragraph 1 of her Amended Application in a Case filed 29 January 2015 the mother seeks a review of the refusal of Registrar Boyd in December of last year to permit the filing of a Contravention Application and an affidavit in support thereof, which filing was expressly rejected on the grounds that it breached Family Law Rule 24.10(1)(e); namely, that, on its face, the documents appear to the Registrar to be scandalous. It is unnecessary to traverse in detail the proposed affidavit of 3 December 2014, which was the relevant document rejected by the Registrar, but suffice to say it does not read, in any way, shape or form, like one would expect an affidavit in support of a contravention application to read.
Relevant to its rejection, the affidavit descends to some allegations in relation to the two judicial officers who, by then, were two of the three judges who had dealt with the matter, namely Judges Hartnett and Willis. In relation to Judge Hartnett, by paragraph 9 of the draft affidavit, it is alleged that she:
...clearly had not read or prepared for the three day trial. She clearly had been informed, I believe, from Willis J that it was a simple matter and the mother had to relocate to [C Town] and the father had done nothing wrong. This is serious ethic breach and misconduct of the Court”.
Later, in paragraph 10, the mother also deposed:
I am told they have not represented their client within the legal requirements of the law. Although, I’m told he [he being the father] requested that they assist with misleading the Court, and I believe Willis received payment to allow this behaviour in these proceedings. It is the only explanation for the long-term issues of this matter and the parties allowing the father to breach the orders to the degree they have and by even allowing the father shared care, shared parental, in the first place, with the serious family violence issues.
Those two are but two instances of a number of such allegations which are made not only in relation to judicial officers, but also solicitors as well. A recurrent theme within the affidavit is that there is collusion between the father, his solicitors and the Court, and perhaps the Independent Children’s Lawyer as well, with there being, so far as I can tell on the material in that draft affidavit, no specific evidence which would legitimately found such serious complaints.
It is, of course, perhaps, the most serious allegation to make about a judicial officer, that they are accepting bribes to subvert the course of justice by permitting one party to succeed unmeritoriously, or otherwise to allow the proceedings to miscarry. There is absolutely no material which would support even the slightest suspicion that Judge Willis had received any payment as the mother alleges. One could scarcely think of a more florid example of a scandalous affidavit. It plainly is scandalous. The Registrar was right to reject it.
I refuse to interfere with the Registrar’s rejection. Paragraph 1 of the Amended Application in a case filed 29 January 2015 will be dismissed.
It follows that all of the mother’s Application of 29 January 2015 has failed. It will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 February 2015.

Associate:

Date: 2 February 2015