Green & Booth
[2021] FedCFamC2F 685
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Green & Booth [2021] FedCFamC2F 685
File number: MLC 5897 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – Interim parenting – interim property – allegations of family violence – final hearing expected to take significant time – matter transferred to Division 1. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 14 December 2021 Place: Melbourne Counsel for the Applicant: Mr P Hannan Solicitor for the Applicant: Keypoint Law Counsel for the Respondent: Ms R Thompson (solicitor) Solicitor for the Respondent: Fair Family Law Counsel for the Independent Children's Lawyer: Ms S Damon Solicitor for the Independent Children's Lawyer: KS Family Lawyers ORDERS
MLC 5897 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GREEN
Applicant
AND: MS BOOTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
Parenting
1.Order 2(b) of the Orders of 27 July 2021 be varied to each Sunday between 7:30pm and 8:00pm.
2.The Respondent be restrained from attending the children's school, extra-curricular activities or other areas the children frequently attend.
3.Pursuant to the relevant information sharing protocols, the Federal Circuit and Family Court of Australia make the necessary arrangements for the Court file related to the Respondent's criminal proceedings heard in the Magistrates' Court of Victoria (matter number …) to be provided to the Melbourne Registry of the Federal Circuit and Family Court of Australia.
4.Upon the production of the said Magistrates' Court file, the parties, the solicitor/counsel for each parent and the ICL have leave to inspect the said file.
5.By no later than 21 January 2022, the Respondent make, file and serve an Affidavit providing an update to the Court in relation to:
(a)The outcome of the Respondent's criminal proceedings in the Magistrates Court, including the detail of all charges, any plea entered and any sentence.
(b)The Respondent's engagement with and attendance upon Dr C since 14 September 2021, including all appointments attended.
6.The parties do all things necessary to obtain an Addendum Report from Dr D and for the purpose of such report:
(a)By no later than 21 January 2022, the Applicant and the Respondent shall each provide to Dr D copies of all documents filed by them and relied upon, since 1 July 2021;
(b)Dr D shall be requested to complete the Addendum report after 21 January 2022;
(c)Dr D shall be at liberty to request any information from or interview with the Applicant as he sees fit and the Applicant shall do all acts and things to cooperate with any such request made by Dr D;
(d)The costs of such report to be paid at first instance from the settlement proceeds from the sale of the Suburb E property with the question of the ultimate liability for the payment of the report to be determined by the Trial Judge.
7.The ICL have leave to copy and provide to Dr D and the Family Report writer, copies of the following documents:
(a)A bundle of the Victoria Police Subpoena documents which is to be prepared by the Applicant at first instance, settled by the Respondent and approved and sent to Dr D by the Independent Children's Lawyer.
(b)Forensicare Mental Health Community Corrections Screening Program Assessment dated 4 November 2021.
(c)Community Corrections Order Assessment Report dated 4 November 2021.
(d)Reasons for Judgment of Judge O'Shannessy dated 14 December 2021.
(e)Liberty to apply is reserved to all parties in the event of a dispute in respect to of the bundle to be provided to Dr D in order 7(a) herein.
8.Dr D and the Family Report writer have leave to inspect:
(a)The Court file in these proceedings;
(b)The subpoena material produced in this matter and released to the parties and the ICL for inspection.
(c)The Magistrates Court file.
Property
9.That the sale proceeds of the property at F Street, Suburb E ("F Street, Suburb E Property") be distributed as follows:
(a)First to pay the costs and commission of the sale;
(b)Second to discharge the mortgages secured over the said property;
(c)Third to reimburse the Applicant in the amount of $19,809 pursuant to order 10(k)(iii) of the orders of 27 July 2021.
(d)Fourthly:
(i)$200,000 to the Applicant by way of part property settlement payable to Keypoint Lawyers trust account;
(ii)$200,000 to the Respondent by way of part property settlement payable to Fair Family Law trust account;
(iii)$20,000 to the Applicant with such payment subject to categorisation by the Trial Judge with such payment payable to Keypoint Lawyers trust account.
(iv)$20,000 to the Respondent with such payment subject to categorisation by the Trial Judge with such payment payable to Fair Family Law trust account.
10.Contemporaneously with settlement of the sale of the F Street, Suburb E Property, from the Respondent's payment pursuant to order 9.(d)(ii) herein, the Respondent forthwith pay any fees or amounts due pursuant to the three caveats …, … and … lodged over the F Street, Suburb E property.
11.The Respondent on or before settlement do all acts and things to remove the three caveats lodged over the property F Street, Suburb E at her expense:
(a)….
(b)…; and
(c)….
12.That the Respondent provide to the Applicant disclosure documents within her power/possession as sought by the Applicant within 28 days of any request.
13.The Applicant's application for a further reimbursement to her in the amount of $4,727 pursuant to order 10(k)(iii) of the Orders of 27 July 2021 is adjourned to the Final Hearing for determination by the Trial Judge.
14.That the parties attend upon Ms G for a Private Mediation on 6 April 2022 with the costs of the Mediator at first instance to be paid by the parties in equal proportions with the question of the ultimate liability for the payment of the Mediation to be determined by the Trial Judge.
15.All questions of costs relating to the booked Mediation on 15 October 2021 shall be reserved for determination by the trial Judge.
Ancillary
16.Save as otherwise provided herein all previous parenting and property orders remain in force and effect.
17.Liberty to apply is reserved to all parties in respect of the settlement of the F Street, Suburb E property and liberty to apply to a Senior Judicial Registrar is reserved to all parties after the release of Dr D’s Addendum Report.
18.This matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:
(a)Serious allegations of family violence warranting the attention of a superior court;
(b)If the matter proceeds to final hearing it is likely it would take more than 4 days of hearing time (5 to 6 days).
AND THE COURT NOTES THAT:
A.The Applicant sought an order this day that she be reimbursed in the amount of $24,536 pursuant to order 10(k)(iii) of the orders of 27 July 2021.
B.The Respondent conceded that the amount of $19,809 should be reimbursed to the Applicant however she disputed the amount of $4,727.
C.The disputed amount of $4,727 has been adjourned to the Trial Judge for determination as there was insufficient court time this day to determine the issue.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Green & Booth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. The applicant mother is Ms Green (‘the Applicant’) and the respondent mother is Ms Booth (‘the Respondent’). The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
This is the fourth time the matter has been before me, and the question I must determine today is whether the Respondent's time moves to supervised time from currently only FaceTime each Sunday. The move to supervised time is opposed by the ICL and the Applicant. The parents commenced cohabitation in about 2002, and they separated in or around July or August 2020, and that date itself is in dispute. The Applicant is 51 and the Respondent 54. The case concerns the welfare of X, now 13, and Y, aged 9 and a half (‘the children’).
From soon after separation until 7 May 2021, the children lived week about between their parents. The evidence before me shows a stream of communication from the Respondent including from moving testaments of love to foul abuse, and both of those matters are intertwined over and over. There are allegations of physical confrontation consistent with a breakdown of the Respondent's mental health circumstances. The matters came to a crisis on 7 May 2021, when, armed with a baseball bat and with two knives in a backpack but not actually produced in the assault (and I note photographs of those knives are at pages 40 and 41 of the police brief) the Respondent assaulted the Applicant and her partner, with whom she has lived after separation.
The orders of July this year provided for the Respondent to attend upon Dr D (‘Dr D’) for a psychiatric report. Relevant conclusions of that report are recited below:
SUMMARY
Ms Booth described a normal childhood and family life. She grew up in a large family in Adelaide. There was no history of trauma or abuse, and on completion of her education, she has worked in the financial sector.
Her relationship with Ms Green involved an initial co-operative phase in which the children were planned and conceived. Progressively she found herself having to both provide for the family unit and care for the children who she spoke of affectionately and clearly loves. Her relationship with Ms Green began to falter in those circumstances, describing Ms Green as distancing herself from her, despite the enormous stresses she was experiencing in the context of the longstanding litigation process, reaching crisis point on discovering the affair. Her subsequent rage episodes occurred in the context of her sense of helplessness to stop her world falling apart, having already lost her career and feeling betrayed in that context. Ms Booth denies the allegations raised by Ms Green and claims she has evidence which will be presented in the criminal proceedings in November 2021.
With treatment Ms Booth no longer describes symptoms of a clinical psychiatric condition. Whilst she remains mistrustful of Ms Green, at interview her focus was largely on re-establishing her relationship with the children. She acknowledges the need for possible supervision initially and is prepared to undergo counselling with the children in order to assist that process.
OPINION
1.This is a matter in which I have not assessed Ms Green in regard to her positive and negative contributions to the difficulties and issues in her relationship with Ms Booth.
2.Her behaviour in the context of the relationship ending, whilst inappropriate and frightening, can be understood as occurring in the context of an already strained and depleted emotional state resulting in her acting out her sense of helplessness and rage in those circumstances. At interview Ms Booth did not describe symptoms of an ongoing psychiatric condition. There is no indication of personality dysfunction.
3.This is a matter in which there are allegations and counter-allegations, the nature and cause of which can only be fully determined by the Court.
4.I do not regard Ms Booth as a risk to the children from a psychiatric perspective and would recommend that a period of supervised contact occur between them and that counselling be provided to the children if deemed appropriate by the Court, together with conjoint counselling between Ms Booth and the children.
5. I have not seen the children and the report needs to be read accordingly.
Those conclusions are themselves controversial in these proceedings. It is significant to me and I am troubled by the circumstance that I have no account from the Respondent about the events of that day. It is common ground that she had the two photographed knives in her backpack: one is a large butcher’s knife; the other is a large serrated-edge knife.
I have no information directly from the Respondent as to how they came to be in the backpack. It appears, from what the Applicant has said in her affidavit, that those knives were wrapped in newspaper, intending to be posted to someone. I am sceptical about that. On this interim hearing, I cannot find that that is or is not the case, but, nonetheless, on the fourth return, I do not have any account from the Respondent about the events of that day. I do have, in her most recent affidavit (filed 13 December 2021), paragraph 8 and I repeat that paragraph below:
8.I was previously charged in relation to an incident on 7 May 2021 whereby I assaulted Ms Green and her partner. The children were not present at the time of this incident. I am deeply ashamed of this incident and the way I behaved. This incident was out of character for me, I have no previous criminal history.
The settled reasons will also recite the police brief summary:
CURENT INCIDENT
In the afternoon on Friday the 7th May 2021 Police were called to the street outside H Street by members of the public. On arrival the Victim Ms Green and 2nd Victim Ms J were separate from the accused.
Ms Green states her and her partner were going to a school mother's day event, upon leaving the address the accused approached Ms Green and said "Why did you do this to our family? I've never gone to mother's day lunch I should be going to this". Ms Green told the accused to leave.
The accused then saw the 2nd Victim Ms J which is Ms Green’s new partner, and started shouting expletives "You wrecked our family, f*****g c**t, how could you f*****g do this",
The accused was standing less than 1 metre from Ms Green with Ms J standing behind her. The accused pulled out an orange baseball bat from her satchel and swung it once toward the Ms Green’s head, making light contact but it just skimmed off her.
The accused then saw Ms J standing behind Ms Green and lunged for her swinging the bat once to Ms J’s head, making hard contact and leaving a sizeable bump on the top of her head.
The accused then dropped the bat and grabbed Ms J by the hair pulling extremely hard. Ms J was screaming and asking the accused to let go.
A witness observed this and at this point, jumped into the scuffle to try to get the accused off the Ms J along-with up-to 3 other tradesmen passing by. It took some time and the witness states the accused's hands were "vice-like" as the accused was pulling the Ms J’s head toward the ground.
Eventually parties were separated and during the scuffle Ms J’s phone had fallen to the ground. The accused quickly scooped down and took the phone from the ground and put it down her leggings. Refusing to return the phone.
As this was happening, First Constable Ms K and Ms L arrived.
The accused was arrested for assault and theft. The accused refused to give a statement as to her version of the incident
The accused was transported to Suburb M Police Station. When First Constable Ms K searched the accused property, it was found to contain an orange baseball bat wrapped in a Coles bag, along with 2 kitchen knives, one large and one small, wrapped in newspaper. Photographs of these were taken.
The accused gave a no comment interview.
The Respondent saw Dr D for the purpose of assessment on or about 20 October 2021.
At that time, the Respondent told Dr D that, for good reason, and on substantial grounds, she was contesting all of the charges relating to that incident. Ms Thompson (solicitor for the Respondent), in pretty skilled and persuasive submissions, submits to me that, taking Dr D's report as a whole, I should find and presume that Dr D was proceeding on the basis that the events or event similar had actually occurred. In substance, Ms Thompson was submitting to me that Dr D was ahead of the play and was not placing any significant weight on the circumstance that the Respondent told him that she was contesting the charges.
The charges then came up for what is known as a contest mention on 3 November 2021 when, I am told, there was a sentencing indication given, and then the matter returned on 8 November 2021 for a sentencing hearing. On one or other of those days, 3 November or 8 November, the Respondent pleaded guilty to five charges out of the 13 with which she was originally charged. Without conviction, she received a community corrections order. It is significant that the matter was without conviction and the Respondent was also otherwise without prior criminal history.
The Applicant's case is, in the circumstance where it is common ground that the children would like to see the Respondent and spend time with her, that time should move to supervised time and supervised by the well-known O Family Contact Service (‘Ms O’).
The nature of those knives in the backpack and the absence of any sworn evidence or detailed account before me or to Dr D from the Respondent is striking. As at this point in time, it is proposed that the O Contact service would accept the retainer to supervise the time as in any other case. The range of allegations of violence that the O Contact service supervises is very wide, and almost all of them are concerning.
Save for paragraph 8 and the statements from Ms Thompson on behalf of her client today and what is in implicit in the plea of guilty, the Respondent has maintained an aura of not quite justification but excuse for her behaviour on that day. Other concerning behaviours, such as the text messages, are included in the plea of guilty to stalking by the 147 text messages. I am concerned that Dr D may not have the full picture. It may be, upon Dr D being provided with further material and asked to provide an addendum to his report, that we get back to exactly the conclusion that we have, and I will repeat the conclusion that Dr D made and recited earlier in these reasons.
However, if there is to be a further application, in my view, the supervising service that is proposed should know of in advance the antecedents and the nature of what the supervisor is stepping into. There are indications that the Respondent’s mental health and general attitude to life is significantly improved, and, in particular, I refer to Dr C’s report and her observation at page 9 in that affidavit filed 9 December 2021.
Over the past three months I have observed a stabilising of Ms Booth’s symptoms. Her mood has shown improvements, and while she is still exhausted and overwhelmed by the legal processes, her physical symptoms of anxiety are reducing. The resumption of contact with her children has given her a considerable psychological boost, and she reports feeling more optimistic. She is speaking with renewed hope of establishing a new home with her children. Although she is experiencing high levels of stress as court hearings approach she has developed solid coping strategies to help manage the pressure. My observations of Ms Booth are of a woman with considerable resilience, who has experienced repeated emotional blows over the past year and has been in psychological crisis at several points. She is now starting to look ahead to the future and is looking forward to piecing her life back together. She continues to be supported by her close and loving family and small group of trusted long-term friends.
I take into account all of the parties' material. I take into account all of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and I am proceeding on the basis that, provided it is safe to do so and provided the children are not traumatised by being involved in the conflict between their parents, there would be a benefit to the children of a relationship with the Respondent. That is one of two considerations I must consider.
The other is protecting the children from physical or psychological abuse or harm, and I am to place greater weight on the second consideration than the first. The ICL is able to assist me by telling me that the children wish to see the Respondent. However, the ICL opposes the orders the Respondent seeks at this point. In my view, it is necessary for the progress of this matter for Dr D to be given the opportunity to be provided with further information.
I have not been told yet about where that money should come from, but, in fact, it should come from the proceeds of sale of the home, and the ultimate burden of whether that is paid equally by the parents or in some different proportion can be reserved to the trial judge. Neither party has the income to afford such an expensive event. However, the information that will be provided from a review by Dr D of that material will be repaid and the expense of that will be repaid many times over by the saving in legal fees as otherwise the parties will have to argue about it at great expense and seek to have the court draw inferences.
One parent now seeks a minor change in the time. The Applicant puts that forward for good reason, and the Respondent says, “That's not a good enough reason, and I want it to stay at the existing time.” I am troubled at the rejection of the sensible request to change the time. It is not changing it to midnight or 1 o'clock in the morning; it is changing it to an evening in Daylight Saving Time with a 13 year old and a nine and a half year old. I am troubled that that has been rejected. I am troubled that the Respondent has made minimal account of the various events that trouble me greatly. This is not a finding that the children will be at risk in the supervised care, but, at this point in time, I am not satisfied that it is in the children's interests that that supervised time proceed.
So I will make the order that the time is changed. I will make the order as per the ICLs outline, save that what I will direct the parties to do acts and things. I am also going to order that the matter be transferred to Division 1. But I will add there is liberty to apply following the release of Dr D’s addendum report, and that will be liberty to apply to a senior judicial registrar to deal with that as an interim matter.
In terms of the material to be provided to Dr D, rather than order number 7, the subpoenaed material produced by Victoria Police is too large. I want the parties to settle the list of that material and put it together in a bundle, with the Applicant to provide the first draft of it to be settled by the Respondent, so that Dr D gets a bundle of material defined and everyone knows what he has got. And so that order will be that the parties settle that material to be provided to Dr D. If there is any dispute or disagreement, come back before me and I will sort it out, though there might be costs involved if that is necessary.
It will be a forensic challenge to counsel to conclude this matter in five days, in my view, unless there is a dramatic change of the matters that are in dispute and degree of dispute. I am not dismissing the substance of the Respondent’s case that she may advance at final hearing, which is clear enough, that effectively she has been the victim of controlling and coercive behaviour throughout the relationship, and to the extent that that informs the outcome for the children at this point in time, that is going to take a bit of time to advance and defend and come to a conclusion. I add in these settled reasons my discussions with the parties. That is the time involved in this case at final hearing will well exceed three days my docket can accommodate. Division 1 of this court can accommodate longer hearings.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Dated: 1 February 2022
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