Heeley and Heeley

[2020] FamCA 611

FAMILY COURT OF AUSTRALIA

HEELEY & HEELEY [2020] FamCA 611

FAMILY LAW – CHILDREN – Interim parenting – where the Applicant seeks to suspend the operation of orders which provide for the Respondent to spend supervised time with the children in Melbourne during the school holidays – where the Respondent seeks that the children live with him – where the Respondent has been charged with sexual offences against his step-daughter, the Applicant’s daughter – where the operation of the current interim Orders for supervised time is suspended

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Heeley

RESPONDENT: Mr Heeley

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 10121 of 2017

DATE DELIVERED: 27 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr MacDonald

SOLICITOR FOR THE APPLICANT: MacDonald Law

THE RESPONDENT: In person

THE INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon of Forest Glen Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The operation of Order 3 of the Orders made on 4 April 2019 is suspended.

2. Save as provided above, the Application in a Case filed 18 May 2020 and the Response to Application in a Case filed 24 June 2020 are each dismissed.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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 Heeley & Heeley 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 BRISBANE

FILE NUMBER: BRC 10121 of 2017

Ms Heeley

Applicant

And

Mr Heeley

Respondent

And

Independent Children’s Lawyer

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 18 May 2020[1], the Applicant seeks to suspend the operation of Order 3 of the Orders made by Judge Purdon-Sully in the Federal Circuit Court on 4 April 2019 (the April 2019 Order). She proposes that the April 2019 Order otherwise remain in force.

   [1]Sealed 25 May 2020.

2. The April 2019 Orders provide that the parents’ children together – ten year old X (who was born in 2010), eight year old Y (who was born in 2011) and seven year old Z (who was born in 2013) – live with the Applicant; the April 2019 Order also accords the Applicant sole parental responsibility for the major long-term issues relating to the children and requires that she advise the Respondent of any emergency or serious medical condition involving the children as soon as possible, but no later than twenty-four (24) hours after the event.

3. Order 3 of the April 2019 Order provides that the children shall spend supervised time with the Respondent on one occasion during each gazetted Victorian school holiday period for a period of two hours on bases which may be summarised as follows:

   a)the time will take place at B Ltd, C Street, Suburb D, Victoria, (“the Contact Centre”); and

   b)the time will take place on the second Tuesday and Wednesday of each school holiday period, between 11:00 am and 1:00 pm or at such other time as the Contact Centre is able to facilitate if, for any reason, the Contact Centre is unable to facilitate the nominated time nominated by the Order; and

   c)the Applicant will book and pay for the Respondent’s flight between Brisbane and Melbourne on the day prior to the time taking place and for his flight from Melbourne to Brisbane on the day following the time taking place; and

   d)the Applicant will book and pay for two nights accommodation for the Respondent in reasonable proximity to the Contact Centre for the night prior to and the night of the time taking place; and

   e)the Applicant will provide the Respondent with written notice of the flight and accommodation details, as well as any tickets or booking vouchers at least four weeks prior to when the relevant time is scheduled to take place.

4. In replying to the Application in a Case, the Respondent seeks the following relief:

   a)return of children; and

   b)evaluation of Mental competency of Ms Heeley; and

   c)breach of orders.

5. The Independent Children’s Lawyers submitted that Order 3 of the April 2019 Order should be discharged; she did not support the children living with the Respondent and ultimately did not support them spending time with him via Skype. She submitted that, as she held concerns about the Respondent’s mental health and current functioning, an order for his psychiatric assessment and evaluation should be made.

6. The Respondent submitted that there was no need for such assessment and evaluation.

What led to orders for supervised time being made?

1. The Applicant and the Respondent each have children from other relationships: the Applicant has now-adult Mr F, 17 year old W and one year old V; the Respondent has two now-adult sons, both of whom are married with children of their own and with whom he says he maintains a relationship via occasional visits and telephone and computer-facilitated communication.

2. On 29 June 2018, the Applicant and Respondent – who had married in 2008 and who separated on 13 June 2017 – consented to Orders which provided for X, Y and Z to spend time with the Respondent in Melbourne in July 2018 and in G City from 29 September 2018 to 6 October 2018. The June 2018 Order also provided for the children to communicate with the Respondent by Skype call each Tuesday afternoon and at all other times by request.

3. The June 2018 Order was made in circumstances where, after the parental separation, the Applicant and children relocated to live in Melbourne (her evidence includes the assertion that she relocated mainly to escape domestic violence perpetrated by the Respondent) and the Respondent lived (as he continues to) just outside of J Town in Queensland.

4. In late 2018, the Respondent was charged with 4 counts of rape, 4 counts of indecent treatment and 1 count of maintaining a relationship with a child under 16. The alleged victim is W – his step-daughter.

5. The charges remain pending. There was nothing in the evidence to suggest when they might be brought on for hearing in the District Court at K Town, although the Independent Children’s Lawyer advised that the finalisation of the same had been delayed as a consequence of the Respondent dismissing those who had previously acted for him in the criminal proceedings.

6. As noted earlier, Orders were made in the Federal Circuit Court on 4 April 2019. The proceedings were subsequently transferred to the Family Court of Australia on 6 February 2020 and have been designated Magellan.

What time and communication have the children had with the Respondent since the charges were brought?

1. As I understand it, X, Y and Z have not had any contact with the Respondent since late 2018. This remains the situation despite the terms of the April 2019 Order.

2. The Respondent advanced that the absence of communication and interaction between himself and the children is the consequence of the Applicant’s deliberate frustration of the terms of the April 2019 Order: in essence, he contended that she deliberately failed to comply with the terms of the April 2019 Order on occasion or complied with them in a manner inconsistent with the spirit of the same – for example, by booking him on a flight which departed Brisbane  at 6.00 am on the day of the supervised visit when she knew he lived in J Town; by booking accommodation for him that was located about 30 kilometres away from the Contact Centre and which would have made it difficult for him to travel to the Centre.

3. The Applicant’s evidence includes that, on 20 June 2019, her solicitors wrote to the Respondent’s then solicitors to advise of the arrangements she had made for his 17 July 2019 visit: it was advised that she had booked his flight to depart Brisbane at 6.00 am that day. She said that, on 8 July 2019, she received communication from the Respondent’s solicitors to advise that the Respondent was cancelling the July 2019 visit.

4. The Applicant also said that, a few days before the scheduled visit in September 2019, the Contact Centre contacted her to advise that the Respondent would not be attending the same.

5. The Applicant said that, on 20 December 2019, her solicitors contacted the Respondent’s solicitors to advise of the arrangements she had made for the January 2020 holidays: namely, that she had booked accommodation located about 30 kilometres from the Contact Centre [which she said is located in an industrial area that is absent accommodation options] but about a five minute walk to a train so he could use that to travel to the Centre. She said that the Respondent simply failed to board the booked flight to Melbourne on 21 January 2020. She also said that, on 30 January 2020, her solicitors received correspondence from the Respondent in which it was said that he had not boarded the scheduled flight because he had not received confirmation from the Contact Centre or copies of flight bookings and was unwilling to travel from the accommodation she had secured to the Contact Centre.

6. The Applicant also said that, on 24 April 2020, the Contact Centre contacted her to discuss whether the children could communicate with the Respondent via video-conferencing as the Centre had ceased to facilitate face-to-face visits because of the COVID-19 pandemic. She said she declined this option as the Centre informed her that the limitations of the technology were such that they could not ensure strict supervision of the video calls. She also said that the children had told her they do not want to talk with the Respondent and she feels that forcing them to communicate with him in this way is not beneficial to them. She said that, when she had previously told the children that they had to spend time with the Respondent, they were upset and did not want to, but she had told them that they had to.

Discussion and consideration of the competing applications for interim parenting orders

1. The manner in which the Court is to approach, consider and determine applications for interim parenting orders such as the present is well-known and requires no further elucidation.[2] As noted in Banks, it is unnecessary for each statutory consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which, given the geographic distance between them and the Respondent and the very serious criminal charges against the Respondent, which involve allegations he sexually abused their half-sister (which remain unresolved), are in the children’s best interests on an interim basis.

   [2]Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

2. I am not persuaded that it is in the children’s best interests to be removed from the primary care of their mother in Melbourne to live with the Respondent outside of J Town. The unresolved nature of the very serious criminal charges involving the Respondent’s alleged behaviour toward the children’s half-sister means that the issue of the risk he may pose to the children cannot properly be assessed and that any time or communication between the children and the Respondent until that assessment can occur must be supervised, so as to give effect to the statutory imperative of protecting the children from physical or psychological harm from being subjected or exposed to abuse.[3]

   [3]Ss 60CC(2)(b) and (2A), Family Law Act 1975 (Cth).

3. I accept that, at present, the Applicant is unable to implement the terms of Order 3 of the April 2019 Orders because the Contact Centre has advised that, as a consequence of the effects of the COVID-19 pandemic, it is unable to facilitate the children spending time with the Respondent there, as provided for in that Order.

4. Although there was no formal application that the Applicant facilitate the children spending time with the Respondent by transporting them from Melbourne  to G City, I accept that the current circumstances enveloping Victoria make that impossible; I also accept that, even if the current restrictions on inter-State travel eased, it is not practicable for the Applicant to cause the children the subject of these proceedings and her youngest child to travel with her to G City so that X, Y and Z could spend four hours of supervised time with their father during each school holiday; I accept that the cost of such an exercise would be prohibitive for the Applicant.

5. The combination of the nature of the unresolved charges against the Respondent, the fact that the children have not communicated with the Respondent since late 2018, that the Contact Centre cannot guarantee strict supervision of any communication between the Respondent and the children which occurs via video-conferencing and that the implementation of the April 2019 would, in any event, only provide the children with the opportunity to spend two occasions of two hours of supervised time with their father on four occasions each year persuades me that it is in the children’s current best interests to suspend the operation of Order 3 of the April 2019 Orders.

6. I consider that, if the criminal proceedings are resolved in a way that is favourable to the Respondent, it will be open to him to apply for an order discharging this order.

7. It is, I think, appropriate that I record that, in raising concerns about the Respondent’s current mental health and functioning, the Independent Children’s Lawyer mentioned the possibility of seeking an order for the Respondent to undergo a psychiatric assessment. Noting that there is no formal application before the Court for such an order, I decline, at this stage, to make such an order.

8. Given it is unknown when these parenting proceedings can be listed for final hearing – as they await the finalisation of the Respondent’s criminal proceedings – I consider that to require such an assessment now would likely result in the expenditure of public monies in circumstances where it is impossible to know what the Respondent’s circumstances will practically be following the resolution of his criminal proceedings and the impact of the same on these proceedings.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 July 2020.

Associ ate:     

Date:              27 July 2020