Hadfield and Harris and Anor

[2017] FamCA 693

FAMILY COURT OF AUSTRALIA

HADFIELD & HARRIS AND ANOR [2017] FamCA 693

FAMILY LAW – CHILDREN – PARENTING ORDERS – where all previous orders were discharged by agreement – where the Independent Children’s Lawyer and the Department of Health and Human Services (as amicus curiae) did not oppose the orders sought between the parties – where it was imperative from both parties’ perspective that the children be enrolled in school after being absent as a result of their dispute – where there were contentious issues in relation to communication between the parties and on an interim basis, it was not appropriate that such orders should be made but should be contemplated again at trial – where there were consent orders between the parties in which notwithstanding the provisions of s 60CC(5) of the Act, the court should not interfere to make them by consent.

Family Law Act 1975 (Cth)

Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
APPLICANT:	Ms Hadfield

RESPONDENT: Mr Harris

AMICUS CURIAE: Department Of Health & Human Services

FILE NUMBER: MLC 8871 of 2008

DATE DELIVERED: 11 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 September 2017

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES AS AMICUS CURIAE: Ms Mendes Da Costa

SOLICITOR FOR THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES: Department Of Health And Human Services, James Lambert, Solicitor, Morwell

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Perry Weston Lawyers

Orders

1. That each party have responsibility for the children when in their care pursuant to these orders.

2. That the children live with the father.

3. That the children spend time with the mother on each alternate weekend from 3.30pm on Friday until 7.00pm on Sunday during all school terms commencing 15 September 2017.

4. That the children spend time with the mother for the second half of the school holidays including the long summer holidays to commence at 3.30pm on the day which is the mid-point of the holidays and the children be returned at 7.00pm on the day prior to school resuming (unless other arrangements for an earlier return are made).

5. For the purposes of paragraphs (3) and (4), all collections that do not occur at school, and all returns by the mother, shall occur at the start of the father’s street.

6. That during school holidays including the long summer holidays, all term time of both parents is suspended but shall resume in the new school term as if it had not been suspended.

7. That a copy of these orders and reasons given this day shall be provided by the court to the Department of Health and Human Services and by the Independent Children’s Lawyer to the children’s school principal.

8. The contravention applications filed by the mother on 28 April 2017 and 2 August 2017 are both withdrawn. 

9. If X obtains employment, the mother make such necessary alterations to these orders to give X the opportunity to participate in that employment. 

10. All substantive applications for final orders are adjourned to a date to be fixed for trial before a judge. 

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

12. That all interim applications are otherwise dismissed.

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 Hadfield & Harris and Anor 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 8871  of 2008

Ms Hadfield

Applicant

And

Mr Harris

Respondent

Department Of Health And Human Services (as Amicus Curiae)

REASONS FOR JUDGMENT

1. The limited reasons that follow indicate why the specific interim orders set out at the commencement are both proper and in the best interests of the children X aged 15 and Y aged 12 years.

2. The substantive parenting proceedings are still pending and it may be that, given time, they will not be necessary.  Having regard to these reasons, and the amount of time and resources the court has put into this family, there is no longer any urgency about a permanent resolution.

3. Ms Hadfield (“the mother”) and Mr Harris (“the father”) have been involved in this dispute for years;  the proceedings seem to have begun in 2008.

4. The 2017 documents might predominantly be described as the mother pursuing the father for contravention of orders and including orders seeking recovery of the children from him.  When the proceedings came before the court on 6 September 2017, the mother withdrew the contravention applications.  The transcript, should it ever be needed, will reflect her reasoning and it is unnecessary for the court to say more about that.

5. With the contraventions withdrawn, the mother’s application for a recovery order was the only interim application extant.  Like the contravention applications, the mother indicated that she did not desire to proceed and then said that her position about future interim orders was reflected in her affidavit filed 5 September 2017.  The father agreed that the best approach was to consider the mother’s proposals some of which he did not dispute.  He had not filed any material.

6. For the purposes of these reasons, I have focussed on the parties’ disputed positions.  Critical to the agreement reached between the parties was that the children needed to be enrolled in a school.  They have not been in school for months.  Thus, orders relating to:

   (a)      enrolling in school;

   (b)      the children living with the father;

   (c)the children spending time with their mother on alternate weekends;

   (d)the point of handover; and

   (e)holiday contact,

   were not contentious although there is an uneasy peace.

7. The other participants in the hearing were counsel for the Independent Children’s Lawyer and counsel for the Department of Health and Human Services (as amicus curiae).  Each did not oppose the orders about which there was agreement and neither could be said to dispute the orders I otherwise now make.

8. The father made clear his views about: “the court”; a specific employee of the Department of Health and Human Services who was present as the representative of the Secretary to the Department; the Independent Children’s Lawyer and, the unnamed state magistrate who some days ago made a three year intervention order against him in his absence.  The father’s disdain for the court is of no consequence as the statutory obligation of the court (whether the father understands it or not) is only to make orders that reflect the subjective value judgments of the judicial officer charged with quelling the controversy.

9. The Department of Health and Human Services had been requested to intervene but had chosen to appear as amicus curiae rather than as a party. The Department filed a report that was admissible under s 69ZW(5) of the Family Law Act 1975 (Cth) (“the Act”) and its contents (albeit apparently disputed by the father) are troubling reading if indicative of how these children are embroiled in this dispute.

10. Both the mother and the father represented themselves.  They presently have no form of communication with each other.  The mother made abundantly clear that she fears the father but what she also endeavoured to articulate was a need for her to be respected.  She feels she has no such respect. 

11. The father made equally clear that he does not trust the mother and believes that, given the opportunity, she would “set him up”.  He maintained that notwithstanding his articulated position, there had to be communication and he thought (as did counsel for the Department) that it should be electronic.  The mother disagreed saying that someone had to be the message recipient other than her. 

12. There is substance to the mother’s fear.  Even in the court room, the father constantly referred to the mother as “the Ex”.  It was said at times forcefully and pejoratively.  His disdain for the Department of Health and Human Services employee was indicated by his loud denunciation of her role.  Whether he considers what has happened to him and the children justifies that disdain is something that might be explored in any final hearing. 

13. Two issues were raised by the father which I declined to determine.  First, the father sought that the mother tell him the details of all psychologists (and other health professionals) that the children had attended.  Particularly concerning psychologists, he thought its relevance had something to do with the mother’s dispute with the professionals about the children wanting to have a relationship with him.  I do not reject entirely that there may be some relevance in that issue but until such time as the court knows what the substantive parenting dispute is, the relevance remains obscure.  The mother’s response was that the father would somehow use the information to harass her.  There may be some substance in that as well but, absent the testing of evidence, and the opportunity to hear full submissions on the point, I can make no finding.

14. A second issue concerned two dogs said by the father to belong to the children.  He wanted them to “travel with” the children between the two houses.  The wife disagreed.  Absent some jurisdictional argument and the father’s capacity to point to the appropriate exercise of power, it is not a matter that could immediately involve the court in a determination.  Accordingly, to the extent that the application was made orally for an order relating to those two issues, the application must be dismissed.

15. There is now an intervention order in existence.  It provides the father is restrained from, inter alia:

    [3]Attempting to locate, follow (the mother) or keep her under surveillance;

    …

    [5]Contact(ing) or communicat(ing) with (the mother) by any means;

    [6]Approaching or remaining within 100 metres of (the mother).

16. Paragraph [9] of the intervention order allows a relaxation of those restrictions if an order is made under the Family Law Act 1975 (Cth) provided the father does not “commit family violence”.

17. It transpires that the father wrote to the relevant Magistrates’ Court before whom the mother’s application for an intervention order was to be heard to say that he could not attend apparently because of a medical appointment.  He disdainfully retorted that the magistrate ignored his request and he had already lodged notice of appeal to the County Court of Victoria where he would get the order “thrown out”.  Curiously, he had not sought to have a rehearing (Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1). I raise the issue only because s 60CC(3)(j) and (k) have some impact here in determining an outcome which meets s 60CA, s 61DA, s 65DAA and importantly, s s60CG. It is the last provision, and specifically s 60CG(2) that permits the court to put in place as part of its parenting orders, an order which provides protection of the nature sought by the mother.

18. Thus, turning to the remaining issues, the following are not contentious:

    (a)      the school holiday orders that should be in place;

    (b)the person who has possession of the children will make the relevant decisions about their health;

    (c)if X obtains employment, her time with the mother will be around that employment.

19. The contentious issues are:

    (a)equal shared parental responsibility or parental responsibility generally;

    (b)whether an injunction should be in place so that the children can only live in Suburb B;

    (c)whether there should be a means or mode of personal communication between the parties; and

    (d)what (if any) orders should there be for the father to attend school events if the mother is to be present.

20. The mother also sought an order that “a person authorised by the court” explain the orders to the children and that a copy of the orders be provided to the school.  In respect of that, I decline to make such an order.  To the extent that the Independent Children’s Lawyer will remain a part of these proceedings until the ultimate trial, it is entirely a matter for the Independent Children’s Lawyer who represents the children’s interests (notwithstanding the father and perhaps even the children disagree) and in my view, the issue should be left entirely to his discretion.

21. At paragraph [47] of her affidavit, the mother sought that there be interim orders so that the court could “determine the impact of the orders for as long as that should take”. 

22. The orders earlier set out reflect the three agreed points. 

23. Of the contentious issue, pragmatism must have some influence but so too, the court is bound by its statutory obligations. 

24. Section 65D provides:

    (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

    (2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

    (3)If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:

    (a)the court must hear and determine the application as soon as practicable; and

    (b)if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.

25. Section 61DA(1) provides:

    (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

26. The presumption here need not be applied because s 61DA(3) provides:

    (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

27. I am satisfied even on the limited evidence available and provided by the mother that it would not be appropriate to apply the presumption because she does not seek an order for parental responsibility notwithstanding her written indication in her affidavit said the opposite.

28. Importantly, s 64B(2) provides that a parenting order may deal with:

    (c)the allocation of parental responsibility for a child.

    But, the effect of such an order can be contemplated within the context of s 65DAC which provides;

    (1)This section applies if, under a parenting order:

    (a) or more persons are to share parental responsibility for a child; and

    (b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

    (2)The order is taken to require the decision to be made jointly by those persons.

    (3)The order is taken to require each of those persons:

    (a)to consult the other person in relation to the decision to be made about that issue; and

    (b)to make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

    On any view of these parties and what they say, those considerations could not be met here.

29. Section 65DAE provides:

    (1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

    (a)has parental responsibility for the child; or

    (b)shares parental responsibility for the child with another person;

    about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.

    (2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.

30. Here, the mother wants nothing to do with the father and articulates that she is frightened of him.  The father wants to communicate with the mother but has the intervention order (even if he says it will be thrown out) still ahead of him which could lead to state intervention and undoubtedly that would have an effect upon the children.

31. Ultimately, communication of about either major long term issues or daily responsibilities is problematic as the mother will not have anything to do with the father.  Thus endeavouring to craft a parenting order of the type contemplated in s 64B is not just fraught with difficulty, I consider it is potentially dangerous.  That is, it is dangerous to both parents having regard to the mother’s fear and the father’s risk of being penalised for so long as the intervention order remains in place.

32. In my view, it would not be proper in the sense used in s 65D of the Act to make the contentious orders (a), (c) and (d).

33. To the extent that the mother attends a school event, the provisions of the intervention order will continue to apply and the father will need to be conscious of his obligations for so long as any such order remains in place.  To the extent that the County Court discharges that order, the mother will need to contemplate her position in relation to being in the same area as the father.

34. In respect of contentious order (b), absent communication, I cannot see how I can restrain the father from moving from Suburb B.  Whilst there is sense in the children attending one school and settling there after what has happened to them in the past, I am conscious of the question arising about the extent of the power of the court even at an interim level, to make the sort of order that the mother seeks.  I consider that issue should wait for trial where the mother’s paragraph [47] mentioned earlier, will no doubt give insight as to what are the future needs of these children.  Again, it is not proper to make any of the orders of that nature as sought by the mother concerning the contentious issues. 

35. To the extent that an intervention order is discharged, the provisions of s 114AB of the Act would no longer be an impediment to injunctive orders but that is not the situation at the moment. Counsel for the Independent Children’s Lawyer also suggested a “non-denigration” order should be made. Apart from the difficulties of enforcement of such an order, s 114AB limits what the court can do and it must be questionable her.

36. Insofar as the parties have otherwise reached agreement with the assistance of the court about orders which are not contentious, s 60CC(5) provides:

    (5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

    As all parties agreed those orders should be made, the court should not intervene at this time and decline.

I certify that the preceding Thirty-Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 September 2017.

Associate:

Date:  11 September 2017