Halstead and Lees & Anor
[2019] FamCA 158
•20 March 2019
FAMILY COURT OF AUSTRALIA
| HALSTEAD & LEES AND ANOR | [2019] FamCA 158 |
| FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where orders for the child to spend time with the paternal grandmother are suspended – Where the paternal grandmother seeks orders to spend time with the child on a gradually increasing basis – Where the mental health and well-being of the mother is in issue – Where the children will remain in the mother’s care pending trial – Best interests of the children. FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the father seeks to adjourn the trial date to a time after the conclusion of the evidence in his criminal proceedings – Where the proposed adjournment is for three months – Where the father lives with a disability that makes it difficult to give evidence for protracted periods – Factors the court must consider. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objection to subpoena – Where the mother objects to inspection and copy of documents produced pursuant to subpoena to the child’s treating medical practitioner – Where the mother says that the subpoena is too broad and represents “fishing” – Where the mother is concerned that documents in the subpoena material may reveal to the father her address or the location of the school that the children attend – Where there is an Intervention Order naming the mother and children as protected persons. FAMILY LAW – PROPERTY – Interim – Where the mother seeks the sale of the matrimonial home – Where the father seeks that the property be listed for tenancy – Where neither party has the capacity to meet mortgage repayments even in the event the property is tenanted. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC |
| Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93‑038 Marvel v Marvel [2010] FamCAFC 101 McMahon v Gould (1982) 7 ACLR 202 Mohsen & Collings [2015] FamCA 583 Re K (1994) FLC 92-461 |
| APPLICANT: | Mr Halstead |
| 1st RESPONDENT: | Ms Lees |
| 2nd RESPONDENT: | Ms Halstead |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4768 | of | 2017 |
| DATE DELIVERED: | 20 March 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 28 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGinn and Mr Ey |
| SOLICITOR FOR THE APPLICANT: | Howe Jenkin |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mellor Olsson |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE 2ND RESPONDENT: | Douglas Hoskins Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Roberts |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That the applicant and first respondent take all steps and sign all documents (within seven (7) days of any documentation being provided to that party) to place upon the market for sale the house, B Street, C Town (Property A), South Australia being the whole of the land comprised and described in Certificate of Title … Folio … B Street, C Town (“Property A”) upon the following terms:-
(a)The appointment of Mr P from the P Group or other real estate agent as is mutually agreed between the parties in the event that Mr P is unable to carry out or complete the sales agency (“the agent”);
(b)In keeping with all terms and conditions as are set out in any Sales Agency Agreement subject to any variation as may be agreed by the parties and the agent;
(c)For sale by public auction or sale by private contract as recommended variously by the agent;
(d)With the parties to authorise any preparatory work to prepare the property for marketing for sale as is recommended by the agent at their equal costs;
(e)With the parties to comply with any recommendations for marketing as are made by the agent at their mutual cost (noting that any expenses paid entirely by one party are to be the subject of a reimbursement to that party as to 50 per cent thereof at the time of settlement of the sale of the Property A);
(f)With the parties to engage such conveyancer as is recommended by the agent and to meet all costs of the work carried out by such conveyancer on an equal basis;
(g)With the parties to authorise payment to the agent of his/her sales agency commission fees and charges and to authorise payment to the conveyancer of his or her costs and charges;
(h)With the parties to authorise the conveyancer to pay such monies as are necessary to discharge any mortgage secured by Property A;
(i)With the parties to authorise the conveyancer to invest the then available balance of proceeds of sale of Property A subject to any agreement in writing between the parties (via their solicitors) to disperse all or any portion of the funds available which are otherwise to be held pending a Court Order in this matter.
Upon the appointment of a real estate agent the father or his agent be permitted to enter Property A under the supervision of the agent to retrieve his personal belongings.
That the trial presently listed to commence on 15 July 2019 be vacated and be relisted for hearing at 10.00 am on 23 September 2019 (7 days allowed).
That the time for compliance by the parties in respect to orders made 12 December 2018 in relation to the filing of documents be varied as follows:-
(a)The time for the applicant to comply with orders 3, 4 and 6 be extended by 14 days.
(b)The time for the respondent mother and respondent paternal grandmother to comply with order 5 be extended by 14 days;
(c)The time for the Independent Children’s Lawyer to comply with order 7 be extended by 14 days.
(d)The time for the practitioners for the parties to comply with order 14 be extended to 4.00 pm on 18 September 2019.
That the Application in a Case filed by the second respondent on 10 December 2018 is dismissed.
That the Response filed by the father on 25 September 2018 is dismissed SAVE as to paragraph 10.
That within twenty one (21) days the mother advise the father via his solicitors as to the detail of all professionals involved in X’s ongoing therapy (including but not limited to those at Agency K) and the children’s treating general practitioner PROVIDED THAT the father and paternal grandmother shall be restrained and an injunction granted restraining them from contacting or communicating with those professionals subject to further order.
That within twenty eight (28) days the mother provide to the father, paternal grandmother and the Independent Children’s Lawyer a schedule setting out the documents produced by Dr F pursuant to a subpoena issued on 21 December 2018 to which she objects on the basis that the document or documents would or may be likely to disclose the address of the mother and/or the children, their contact details or their preschool or primary school to which they attend.
If there is agreement that the documents identified by the mother as objectionable can be either redacted or separated from the other documents produced THEN leave is given for the schedule prepared by the mother to be forwarded to the chambers of Justice Berman whereupon the registry will separate and/or mark the documents identified as the subject of agreement following which the parties will have leave to inspect and copy the documents produced under subpoena.
If there is no agreement or only partial agreement in respect of the documents identified by the mother THEN leave is given for the matter to be listed for argument on seven (7) days’ notice.
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 Halstead & Lees 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 ADELAIDE |
FILE NUMBER: ADC 4768 of 2017
| Mr Halstead |
Applicant
And
| Ms Lees |
1st Respondent
And
Ms Halstead
2nd Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed 19 January 2018, Mr Halstead (“the father”) sought orders that X born in 2013 and Y born in 2015 (collectively “the children”) live with the parties on an equal time basis noting that it is the father’s intention to reside with the paternal grandmother who will attend to the day to day physical care of the children and the father.
The father also sought orders for property settlement summarised as follows:-
(1)That the former matrimonial home situate at B Street, C Town (“Property A”) be sold and the proceeds be divided equally.
(2)That all other assets of the parties including superannuation entitlements be divided or adjusted to equality.
Ms Lees (“the mother”) opposes orders sought by the father and by her Amended Response filed 12 January 2018 seeks final orders summarised as follows:-
(1)That the mother have sole parental responsibility for the children.
(2)That the children live with the mother.
(3)That the children spend time with Ms Halstead (“the paternal grandmother”) at such times and on such conditions as may be agreed or as otherwise ordered.
(4)That the children spend no time with the father.
(5)That the mother and the paternal grandmother be restrained from:-
(a)discussing the incident on … 2017 or the injuries or the current state of the father’s health other than in accordance with the recommendations of the children’s treating child psychologist Dr F;
(b)criticising, abusing or denigrating each other or the others’ extended family in the presence of the children or allowing anyone else to do so;
(6)That the paternal grandmother is restrained from allowing the children to communicate or spend time with the father or allowing any other person to do so.
(7)That the mother be permitted to remove the children from the Commonwealth of Australia for the purpose of holiday and/or the mother’s work commitments upon giving 21 days written notice to the father and the paternal grandmother.
(8)That orders for property settlement be made pursuant to s 81 of the Family Law Act 1975 (Cth) (“the Act”) and be just and equitable.
The mother also seeks an order by way of lump sum child support pursuant to s 123A of the Child Support (Assessment) Act1989 (Cth) in the sum of $90,000 with the said sum to be deducted from any settlement sum payable to the father by way of property settlement.
By her Response filed 17 January 2018 the paternal grandmother seeks to share the care of the children with the mother to the exclusion of the father, subject to preserving her right to further amend the final orders upon the finalisation of the father’s criminal proceedings.
On 12 December 2018 trial directions were made that listed all applications for final hearing on 22 July 2019 as a five to seven day matter.
The interim proceedings are in respect of the following matters:-
(1)The father’s application to vacate the trial date and relist the matter after the finalisation of the criminal proceedings.
(2)The mother’s application for the sale of Property A.
(3)The father’s application for the mother to make further and better discovery.
(4)The father’s application that the mother provide photographs of the children and provide him with the necessary authorities to receive information in respect of the children’s pre-school and primary school education together with advice as to X’s health professionals and an authority that there be disclosure of information to the father and the paternal grandmother.
(5)The application of the paternal grandmother to resume time with the children.
(6)The mother’s objection to the inspection and copying of documents produced under subpoena by Dr F.
On 15 March 2019 the Queen’s Counsel for the mother informed the Court that the mother’s previous solicitors had now been paid and she holds a signed Withdrawal of Caveat in respect of the caveat lodged by them over her interest as a joint tenant in Property A. The mother no longer seeks an order that the liability pertaining to the said caveat be paid at settlement.
Background
I have had regard to my judgment delivered 23 November 2018 and the detailed consideration of the relevant history in the judgment of Judge Brown bearing the citation Halstead & Lees & Anor [2018] FCCA 425.
The parties separated on 30 June 2017. On … 2017 the father was involved in a traumatic incident with Mr B in or around Property A.
It is alleged that the father shot Mr B in the stomach causing grievous injuries. Mr B then struck the father with a tomahawk axe to the back of the neck rendering the father a tetraplegic, initially not able to breathe unaided and with no capacity to move his body from his neck down.
The aftermath of the incident was seen by the mother and another occupant of the house, but not by the children.
The father is the subject of a serious criminal charge which has been listed for hearing in the Supreme Court of South Australia in 2019. Given the severity of the father’s disability, it is anticipated that the trial will be heard over a period of about one month to enable him to take the necessary breaks to rest and recover during the proceedings.
On 23 February 2018 Judge Brown made orders that the children live with the mother and she be responsible for making parenting decisions. It was further ordered that the children spend time with the paternal grandmother on alternate Sundays from 10.00 am to 5.00 pm subject to the time taking place at the home of the maternal great-grandmother and to be under her supervision.
Any inquiry by the children as to the whereabouts of the father was to be answered by telling the children that the father was “away working” or words to that effect.
On 9 March 2018 the mother filed an application seeking to suspend the children’s time with the paternal grandmother. The application was supported by an affidavit which asserted that on 24 February 2018 (the day following Judge Brown’s order) the mother experienced severe chest pains which necessitated the attendance of an ambulance. The mother was conveyed to hospital and then admitted to the Mental Health Unit. She was discharged on … 2018 and was referred to Dr E, psychiatrist.
On 24 May 2018 (as amended 1 June 2018) Judge Brown ordered that “paragraph 2 of the orders dated 23 February 2018 are suspended”.
The proceedings were thereafter transferred to the Family Court of Australia.
Application to vacate the trial
The father seeks to vacate the trial date of 22 July 2019. It is uncontroversial that the father faces serious criminal charges that have now been listed for hearing in the Supreme Court of South Australia.
The father’s criminal law solicitor appeared on the application and submitted that the Court can have a high degree of certainty that the criminal proceedings will run as listed. Given the extent of the father’s disability the trial has been scheduled to be heard over the period of one month.
There were no submissions that sought to contradict the advice provided to the Court by the husband’s criminal solicitor and accordingly, I accept that but for unforeseen circumstances the fate of the father’s criminal charges will be determined by the end of August 2019.
The mother opposes the adjournment of the trial on the basis that there is unlikely to be any prejudice caused to the father if the parenting proceedings precede the criminal proceedings.
In McMahon v Gould (1982) 7 ACLR 202 Wootten J succinctly summarised the authorities and said that in deciding whether to stay civil proceedings the Court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings. His Honour went on to list the relevant factors at 206-207 [101]:-
(a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
(b)It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(c)The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;
(d)Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of pending or possible criminal proceeding;
(e)The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;
(f)Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
(g)One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence” and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding …;
(h)However, the so-called “right of silence” does not extend to give such defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;
(i)The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;
(j)In this regard factors which may be relevant include:-
(i)the possibility of publicity that might reach and influence jurors in the civil proceedings;
(ii)the proximity of the criminal hearing;
(iii)the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iv)the burden on the defendant of preparing for both sets of proceedings concurrently;
(v)whether the defendant has already disclosed his defence to the allegations;
(vi)the conduct of the defendant, including his own prior invocation of civil process when it suited him;
(k)The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest … that it may be relevant to consider the nature of the defendant’s obligation to the plaintiff.
(l)In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.
(citations omitted)
In Re K (1994) FLC 92-461 the Full Court quoted with approval from McMahon v Gould and said at 80,765:-
So far as the “right of silence” and any wider question of potential prejudice in the party’s subsequent criminal proceedings are concerned, we consider that … it would be a rare case where that alone would justify an adjournment.
In Mohsen & Collings [2015] FamCA 583 Foster J had an application for an adjournment before him in circumstances where the father was subject to pending criminal proceedings for offences against the mother. The mother made an application for the hearing to be adjourned pending the determination of the father’s criminal proceedings. The father opposed the application. His Honour considered the principles in McMahon v Gould and Re K and found that having regard to the primary and additional considerations in the circumstances of this case it is in the best interests of the child and otherwise appropriate that the present proceedings be adjourned to await the outcome of the father’s criminal proceedings.
Ultimately I am persuaded that the trial should be adjourned to await the outcome of the father’s criminal proceedings.
The predominant issue under consideration is the future parenting arrangements for the parties’ children. The father now seeks sole parental responsibility and the primary care of the children to the exclusion of the mother. It is also foreshadowed that the paternal grandmother may well amend the orders that she seeks to reflect that the children spend less time with her than appears in her amended response.
It is uncontroversial that if the father is convicted of the more serious of the criminal charges, a sentence of imprisonment is a distinct probability. That would have a dramatic effect on the father’s parenting proposal. Even if not convicted, the circumstances and involvement of the father in the incident in 2017 is likely to be a relevant consideration.
I do not ignore the prejudice caused to the mother in the trial being adjourned. Each of the parties has sustained significant emotional toll and understanding that the mother intends to rely on evidence that confirms a diagnosis of Post- Traumatic Stress Disorder (“PTSD”), there can be little doubt that it is only by the resolution of the proceedings that the parties may be able to return to some semblance of normality.
Ongoing litigation is never in the interests of children and whilst they may not necessarily be aware of their parent’s circumstances, their stability is dependent on the conclusion of the proceedings.
I bring to account the serious disability sustained by the father and accept that the criminal proceedings and these proceedings will take a significant physical toll on him.
If there had been some uncertainty as to when the father’s criminal proceedings would be resolved it is likely that I would not have been prepared to adjourn the proceedings. In this case, there is certainty that the criminal proceedings will be heard and determined in August 2019. On the basis that the Court can accommodate a hearing to commence on 23 September 2019 narrows the focus to a period of two months. I do not consider that any prejudice caused to the mother by a relatively short adjournment will result in significant prejudice.
The advantage of the criminal proceedings being resolved and the father and other witnesses being able to give their evidence more freely without the constraint that something said in these proceedings may adversely impact in criminal proceedings is readily apparent.
Given that the proceedings will now be heard on 23 September 2019 it is reasonable to extend the time to each of the parties to file and serve their trial material by a further 14 days.
Mother’s application to sell property A
The parties are the joint registered proprietors of B Street, C Town, South Australia (Property A). The mother seeks that it be sold. The father seeks that the parties take all necessary steps to list the property on the rental market.
There is about $200,000 of equity in the property. Whilst there is significant dispute as to the current financial circumstances of the parties and the manner in which property had been dealt with before and after separation, it appears uncontroversial that the pool of property available for adjustment is modest and in any event, what remains is likely to be consumed by the parties’ current and future legal fees.
I am satisfied that whatever the eventual outcome may be in terms of property settlement, any perceived victory is likely to be pyrrhic.
The mother vacated the property in May 2018 and has not returned. The father was not able to return given that he was in intensive care and then long-term rehabilitation.
As is evident from the orders sought by the parties, but in particular the father in his initiating application, it appears that there was a concession that neither party would be able nor wish to retain the property and accordingly it should be sold.
Some inquiries were made with a local real estate agent and there appears to have been some discussion between the parties that the mother interprets as the father’s consent to the property being listed for sale.
There is a substantial mortgage secured over the property and the monthly payments are in the sum of $1,545.16.
The mother has been utilising property of the parties to maintain the mortgage. However, that has now come to an end.
The mother does not have any financial resource that would enable her to continue to pay the mortgage.
Application was made to the bank for a payment moratorium, initially for three months and now possibly for a further three months. Whilst that relieves the parties of the obligation to make the monthly payments, it does not stop interest accruing and the outstanding mortgage liability increasing.
The mother does not want there to be a mortgagee sale.
For his part, the father now considers that he may seek to retain the property as part of the orders for property settlement that he will seek. That position has not yet been formalised and it is conceded by counsel that at present the father does not have the ability to make the mortgage payments.
Even were the property to be rented at the anticipated rent of $450 per week, the father acknowledges that there will be a shortfall that he will not be able to meet.
The father’s uncertainty as to the retention of the property may well be linked to a decision yet to be made as to whether he will be eligible to make application for permanent and total disability payment under his superannuation scheme.
There has been no discovery of documents and there is no common ground as to whether if such a payment is available, it would be subject to the father being acquitted of all serious charges.
The certainty therefore is that the liability secured over the property will inevitably increase. There are also other ongoing liabilities in respect of the maintenance of the property in terms of the utilities and general maintenance. Neither party has the present financial wherewithal to attend to the outgoings and in circumstances where the mother does not wish to retain the property and does not occupy it, it would be difficult to see how she should be forced to make any contribution.
A further difficulty with the father’s proposal to place the property on the rental market is that the parties would be required to cooperate and communicate with each other at some level. The inter-parental relationship between them is non existent and it would be beyond their capacity, both physically and emotionally, to deal with the other at this time.
Accordingly, I consider there is merit in the mother’s application that Property A needs to be sold and I find that the orders she promotes would provide for the property’s orderly disposal in a manner likely to maximise the return.
The father’s property
The mother has vacated Property A and has removed her belongings. There remains in the property a quantity of furniture and effects which the mother concedes should be retained by the father. There is no issue with appropriate arrangements being made for the father’s agent to attend the property providing that no member of the father’s family should enter the premises.
I do not consider that there can be any prejudice caused to the mother by the father utilising the services of either his family or professional removalists as may be necessary to readily secure his furniture and personal effects.
I propose to order that once a real estate agent is engaged for the sale of the property then the father can make the necessary arrangements either personally or via his agent to attend at the property to retrieve his personal belongings under the supervision of the agent.
Further discovery sought by the father
In [6] of the father’s Response filed 25 September 2018, he seeks that the mother provide copies of a range of documents as described.
It is difficult to understand the forensic focus of the documents sought other than the father has a concern that the mother has not adequately explained the disbursement of substantial sums of money available to her after separation.
Moreover, there may be some issue as to the value of the mother’s interest in her previous business known as G Business and her current business known as J Pty Ltd.
There is little clarity as to whether it is the intention of the parties or either of them to seek a valuation of the mother’s business interests. Whatever forensic value may derive from the discovery as sought by the father, its utility may need to be measured against an asset pool of modest, if not nil value.
In the ordinary course, the Family Law Rules 2004 (Cth) impose clear obligations on the parties to make full and frank disclosure of documents that are relevant to the issues in dispute. It could not be said that the orders that are sought by the parties, but in the context of the father’s application for discovery, where the father has not yet particularised the final orders sought.
There is also a concession by the father’s counsel that irrespective of relevance, substantial documents have been provided. Counsel was not able to indicate which of the category of documents sought in [6] were still outstanding. It may be that whatever remains outstanding is no longer of any consequence.
In those circumstances and where there has been substantial compliance with the rules in respect of disclosure and production of documents, I do not propose to make the orders as sought by the father.
The application of the paternal grandmother to spend time with the children
At present the orders made by Judge Brown on 23 February 2018 are suspended following the mother’s psychiatric episode that she alleges was in response to the orders providing for the children to spend time with the paternal grandmother.
By her Application filed 10 December 2018, the paternal grandmother seeks orders that the children spend time with her on one Sunday per month between the hours of 10.00 am and 12 noon for two visits only and thereafter, on one Sunday per month between the hours of 10.00 am and 5.00 pm for two visits only.
Thereafter, the children would spend time with the paternal grandmother on each alternate Sunday between the hours of 10.00 am and 5.00 pm being an order not dissimilar to the order of 23 February 2018, save and except that it is not proposed that the time with the paternal grandmother be the subject of supervision, but if so then the maternal great-grandmother is promoted as an appropriate supervisor.
It is asserted that at least for the next four months the time with the children would be modest.
The application is supported by the father and remains strongly opposed by the mother.
The paternal grandmother’s argument is encapsulated in [15] to [17] of her Affidavit filed 10 December 2018. She considers that “the primary reason that my time with the children was suspended was due to the mother’s assertion that her mental health was such that she could not cope with the thought of the children spending time with me…” She refers to the report of the mother’s treating psychiatrist Dr E.
She further refers to an application brought by the mother to travel with the children to the United States for her brother’s upcoming wedding. That application was supported by a further report of Dr E which is considered by the paternal grandmother to confirm that Dr E had “no concerns about her capacity to maintain her mental health status”.
In summary, the paternal grandmother highlights at [17] that:-
It has now been more than 9 months since I have last had any contact with the children … That is a significant period of time wherein the mother has improved her mental health. Further, Dr E is of the opinion that the mother has no difficulties managing her mental health status and the mother has also been permitted to travel overseas with the children to a bustling and busy location being … City. I say that it is appropriate in all of the circumstances that I now recommence to spend time with the children.
Whilst it is perhaps a superficial consideration that the children spending time with the paternal grandmother is to be determined only by the state of the mother’s mental health and psychiatric functioning, it does require a consideration of the various reports of Dr E.
Exhibit “1” is an update psychiatric report dated 22 January 2019. Dr E confirms that he is the mother’s treating psychiatrist; that he saw her on 27 February 2018 and since his report of 13 November 2018 she has been reviewed on 28 November 2018 and 14 January 2019. He sets out that since November 2018 the medication doses have been increased and there has been a change from one drug to another.
He observed that the mother continues to fear for her life and whilst acknowledging that the father is unlikely to pose any significant physical threat, nonetheless, she retains:-
a considerable fear. She fears his family particularly her ex-mother-in-law,. This is both a fear of physical or verbal attack, but she describes a financial attack. She’s not being able to work, is depleting funds due to the cost of her legal matters and is worried regarding bankruptcy.
She is “terrified of her mother-in-law having contact with the children and the effect on them, and the effect on herself.”
She remains distressed at what she considers is the inappropriate exploration by the father and the paternal grandmother of her confidential medical files. She does not have any trust in SA Police and:-
She believes that her ex-husband intended to kill her, and that encountering her housemate in the garage and subsequently been hit with the tomahawk disrupted his plans. It is hard and very likely unreasonable to persuade her otherwise.
In summary, it is Dr E’s opinion that:-
She has a post-traumatic stress disorder which is difficult to impossible to treat because the persistence or perceived threat. She has conceptualised the threat as originating from her husband and his family. Whilst this may be an illusion and the mother-in-law’s intentions entirely benign, the difficulty with this argument in treating [the mother] is her observation that the mother-in-law’s activities disrupt her emotional and financial well-being, and that these facts she assumes are known to the mother-in-law. She surmises that her emotional and financial well-being, which impact on [the mother’s] capacity to care for the children, are of no relevance to the mother-in-law.
Dr E contends that the mother’s well-being is “severely compromised by the persistence of request for contact from the mother-in-law” and any further exacerbation of her emotional well-being is likely to impact adversely on her ability to parent and provide for the children.
Dr E considers that the recovery time for the mother will be years.
The evidence of Dr E has not yet been tested, but I consider that I must act cautiously in circumstances where Judge Brown was persuaded by the evidence presented as to the mother’s psychiatric presentation and the potential for deleterious impact upon her ability to parent the children. The paternal grandmother does not present any evidence that would suggest the mother is now more resilient than she was at the date of the suspension of the order.
It may even be opined that Dr E’s report would support a finding on an interim basis that the mother’s circumstances have not improved and are exacerbated by the ongoing proceedings.
In respect of any application for interim parenting orders I am obliged to consider the best interests of the children and to have regard to the primary and additional considerations pursuant to s 60CC of the Act.
There is no suggestion that the father seeks to spend time with the children on an interim basis, although he does seek that he be provided with some information as to their current well-being.
At this stage and certainly in the period to trial, it is not in contest that the children will remain in the primary care of the mother and that she will have sole parental responsibility pending final determination of the proceedings.
The focus must be to ensure the stability and well-being of the children. I do not consider that without the evidence of Dr E and the mother being tested that I am able to find otherwise than is reflected in Dr E’s summary of the risks to the mother’s ability to securely parent the children during the currency of the litigation.
I do not consider that there has been any evidence presented that would alter the position as considered by Judge Brown in his decision to suspend the orders for the children to spend time with the paternal grandmother. If anything, the recent report of Dr E would suggest that if there has been any change it is not of benefit to the mother.
Father’s application for information about the children
In his Response filed 25 September 2018, the father seeks that the mother provide photographs of the children on a bi-monthly basis via the postal address of the paternal grandmother, that the mother authorise the father receiving from the children’s childcare centre and school all information and documents which would be provided to a parent and that upon X commencing school in 2019, that the authority should extend to enable the father to receive from X’s school all information and documents which would ordinarily be received by a parent including school reports, newsletters and photographs.
Additionally, the father also seeks that the mother advise the father of the details of all of the professionals involved in X’s ongoing therapy (including but not limited to those of Agency K).
The mother opposes the father’s application for reasons not dissimilar to her opposition to the orders sought by the paternal grandmother.
It is a relevant consideration that at present the father is the subject of an interim intervention order made 14 December 2017 which lists the mother and the children as protected persons.
The intervention order is in the usual comprehensive terms and paragraph 12 permits the father to have contact with the protected persons in accordance with an order made under the Family Law Act 1975 (Cth).
The overarching consideration must be the extent to which the incident in which the father sustained his serious injuries may also constitute an act of family violence.
The circumstances in which the parties find themselves are both complex and grievous.
I have no doubt that were it possible to do so, the father may well have acted differently.
I cannot ignore that whatever may be the outcome of the criminal proceedings, the evidence that the mother proposes to rely on suggests that she has been fundamentally affected by the breakdown of the relationship and the events that constituted the catalyst for the separation.
I understand that the father would wish to know the current circumstances of the children, but until the Court has been able to consider carefully the evidence that is going to be presented by each of the parties and the Independent Children’s Lawyer (“ICL”), the advantage to the father in securing the information that he seeks in circumstances where he is at present not asking to spend time with the children is a matter that is not likely to assist the children. Their primary point of security at this stage of the proceedings is their mother. Unless there is a benefit to the children that outweighs the potential for detriment in terms of any diminution of the mother’s parenting capacity, I am obliged to err on the side of caution.
In Marvel v Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence as follows :
120As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
I consider therefore that whatever my feelings might be, I should approach the circumstances in which these children find themselves with great caution.
Accordingly, I do not propose to make orders in terms of [7] to [9] inclusive of the father’s response. Paragraph 10 of the orders sought is in a different category. The orders that each of the parties seek raise issues of the extent to which X’s diagnosis of Autism will impact upon the orders that each of the parties seek. The Court is not able to take judicial notice of a diagnosis, but the effect on the child of any medical or behavioural condition may well be a relevant factor when considering the orders that the parties are seeking.
In any event it seems that the ICL may well wish to separately explore any ongoing therapy and I am aware that the mother has relied upon reports from X’s treating psychologist Dr F in respect of these proceedings.
At this stage I am prepared to accede to the order sought by the father, but limited to an advice to him as to the details of the professionals involved. I will not require the mother to authorise information to be disclosed at this stage.
It may well be that there is little likely benefit in terms of the proceedings other than which may arise from Dr F.
Mother’s objection to the subpoena directed to Dr F
On 21 December 2018 the paternal grandmother caused a subpoena to issue to Dr F seeking the entirety of his file in relation to his professional involvement with X.
The documents have been produced, however, following their inspection the mother filed a Notice of Objection on 22 February 2019.
The grounds of objection are detailed and raise concerns that the documents produced include photographs of one of the children and the names and addresses of various providers of therapy, care and education of the children.
There is also concern that the address and other personal contact details of the mother may well be disclosed.
The more general objection is that the subpoena is “broad and fishing and/or not relevant to the issues in dispute in the proceedings”.
It seems the difficulty for the mother is that she has relied upon the reports of Dr F in support of orders that she seeks. Moreover, it appears likely that the Court will hear evidence from Dr F and in those circumstances the basis upon which he may proffer any opinion may invite a consideration of his professional notes and other information.
Whilst the mother’s opposition to the subpoena also raises her general concern that the subpoena represents a further invasion of her “privacy” and has the potential to further exacerbate her PTSD, I am required to consider that the potential that the evidence of Dr F is likely to be highly relevant and therefore the proper administration of justice would require inspection.
In Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93-038 the Court considered at 87,600 that:-
The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
And then at 87,601 the Full Court set out the following:-
The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena.
The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether the documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation of the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross examination.
As discussed, I consider that the evidence of Dr F in circumstances where his reports have been the subject of tender and reliance by the mother satisfies the test of apparent relevance.
I do however accept that information contained in the file that is not relevant to the professional engagement of Dr F with X should not be the subject of inspection and accordingly, I propose to order that the mother prepare a schedule of documents that identify a particular document to which objection is taken on the basis that it is likely to disclose the whereabouts of the mother and/or the children and a short summary as to the nature of the document but without any requirement to disclose the content of the document. If agreement is not reached then the subpoena and the mother’s objection will be listed for further consideration.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 March 2019.
Associate:
Date: 20 March 2019
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