HILLMAN & HILLMAN

[2017] FamCA 739

FAMILY COURT OF AUSTRALIA

HILLMAN & HILLMAN [2017] FamCA 739

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment under slip rule – Where it is appropriate to amend a consent order pursuant to r 17.02 of the Family Law Rules 2004 (Cth) – Where the error was clearly an accidental slip of the drafters.

FAMILY LAW – PARENTING – INTERIM – Where the Father’s application is to vary existing parenting orders – Where it is not in the children’s best interests to vary the order – Application dismissed.

Corporations Act 2001(Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Hillman

RESPONDENT: Mr Hillman

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: BRC 1750 of 2016

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Brandon, Evans & Company Family Lawyers

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fox

Barbara Fox Solicitor

Orders

1. That the Order made 17 November 2016, be varied pursuant to Rule 17.02(1) of the Family Law Rules 2004 by deleting the word “provisional” from order 1.2 of that Order.

2. That the father’s application to vary the existing interim parenting Order is 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 Hillman & Hillman (No 2) 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 1750 of 2016

Ms Hillman

Applicant

And

Mr Hillman

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. For immediate determination in this matter are applications brought by the father for some change to the existing interim parenting orders, for the discharge of some property orders made by consent last year and a competing application by the mother for the amendment to those property orders by use of the ‘slip rule’.

2. The matter was before me in the Judicial Duty List on Monday 18 September, 2017. The father appeared without legal representation. The mother was represented by a solicitor and the Independent Children’s Lawyer was represented by counsel.

Some background

1. The father and the mother separated after 23 years of marriage in February last year. The mother alleges that was after an incident of serious family violence directed at her by the father. The father denies that allegation.

2. The mother commenced proceedings in the Federal Circuit Court (“the FCC”) for parenting orders and property settlement orders soon after separation. The former couple have been in high conflict ever since.

3. They have two daughters. The eldest is 14 years old. The youngest is 11 years old. Initially, after separation, the girls lived with the parents on an equal shared week about basis. Judge Cassidy of the FCC subsequently ordered that the girls then live with the mother and spend no time with the father. The evidence is that the eldest girl then began running away from the mother’s home back into the care of the father. Each time she was returned to the mother’s care she ran away again.

4. Judge Cassidy then ordered that the children start spending time with the father with a supervisor present, but the eldest child’s behaviour apparently did not change. Soon thereafter, her Honour stayed her parenting orders in so far as they dealt with the eldest girl and invited the Queensland Department of Communities, Child Safety and Disability Services to intervene. That did not happen and the matter was transferred to this Court.

5. In September 2016, Senior Registrar Spink ordered that the eldest child live with her father and spend no time with the mother unless agreed between the parents or the child expressed a wish to, and for the youngest child to live with the mother and spend no time with the father unless agreed between the parents or the child expressed a wish to.

6. It was also ordered that the parents facilitate the children spending time together as agreed or, in default of agreement, then each alternate Sunday.

7. In November 2016, the mother and the father appeared before Austin J in this Registry, each represented by counsel. An order was made by consent that the company through which the father and mother operated their business be wound up pursuant to the Corporations Act 2001 and that certain named individuals be appointed as “provisional liquidators” of the company pursuant to s 472 of the Corporations Act 2001.

8. Despite the orders, the children were not spending time with each other. The parents were not facilitating it or agreeing upon it.

9. On 8 May 2017, the matter came before Hogan J of this Court. On that day, her Honour made more orders by consent that provided for the two girls to spend time together in the presence of an independent supervisor/facilitator each alternate Saturday from 1:30 to 3:30 pm. The order provided for each parent to comply with any directions of the supervisor to “ensure that the children’s time together is free from any conflict between the parents”. The order also provided for the Independent Children’s Lawyer (“the ICL”) to obtain written reports from the supervisor with respect to the sibling contact from time to time.

10. By the time the matter came before me, the father had filed a number of applications in respect of the parenting matter, including an application that he regarded as an application for the review of Registrar Spink’s decision.

11. At the hearing before me on Monday, 18 September 2017, the father informed the Court that his was essentially an interim application for a variation to the existing parenting orders so that orders would be made that provided for each child to spend a weekend in the home of the other parent each fortnight, such that the girls would be in the same household each weekend.

12. The solicitor for the mother and counsel for the ICL told the Court that when the Court heard that from the father it was the first time that they had become aware of that being the father’s application. Having regard to the documents, I have little doubt that is correct. Nevertheless, no one asked me not to hear and determine the father’s application. Each of the ICL and the mother opposed it.

Should an order be made that the girls spend one weekend each fortnight in the other home with the other parent and her sister?

1. At first blush, it is difficult to say that such an order would not be a proper order in the children’s best interests. However, there is absolutely no evidence that either of these two girls has expressed a wish to spend time in the other parent’s household and there are grounds for considering that such an order is not appropriate just yet.

2. A psychologist, Ms G, has provided reports to the ICL that have been put into evidence over time. The last one is dated 24 March 2017. Ms G has seen the mother and both girls.

3. The youngest child was reported to have said that meeting with her big sister and her father stressed her as her sister would “continue to question [her] about what her mother is doing and where she and her mother live”. She is reported as saying that her sister says critical things about their mother and “… tells [her] that she should be seeing her father.” She is reported as having said that she finds her father “scary” and being “adamant that she does not want to see her father”.

4. Ms G also referred to her contact with the eldest girl and the father. She described how the father told her that his eldest daughter was not comfortable attending therapy with her and that he had taken her to another psychologist. Ms G reported telling the father that changing the eldest child’s therapist might be in her interests.  Ms G concluded by referencing the eldest child’s previously expressed wish to remain living with her father and to have no contact with her mother. Ms G expressed the opinion that that child’s wish “has probably not changed”.

5. That report was seemingly available to the parties and Hogan J before the May orders were made.

What, if anything, has changed since Hogan J’s orders?

1. I am not satisfied on any of the evidence that I saw or any of the submissions that I heard that anything has changed.

2. The father expressed his disappointment and distress at the situation of not being able to spend any time with his youngest daughter at the moment in no uncertain terms. That much is understood. However, he really was not able to, nor did he really try, to take my attention to any evidence that supports a finding that things have changed since Hogan J’s orders such that the girls should now start going to the other parent’s home for every second weekend.

3. In actual fact, it was counsel for the ICL that put relevant and telling evidence before the Court. He tendered a bundle of documents that consisted of emails between the supervisor/facilitator of the girls’ time together and the father, as well as her reports to the ICL.

4. The emails reveal that the girls’ time with each other scheduled for the Saturday just gone, 16 September, did not take place despite the supervisor’s best efforts to co-ordinate it. Prima facie, the email exchange reveals that the father intervened and ultimately prevented the girls from spending time together because he was unhappy with the venue that the supervisor and the girls had apparently agreed upon. He was insisting that it be at the H Park whilst the supervisor advised that the girls and her had agreed that it was to take place at J Shopping Centre. The father asserted that the mother was dictating the choice of venue and did not accept the supervisor’s assurance that she was not.

5. It is not too difficult to accept that a 14 year old girl and her 11 year old sister might prefer to spend a couple of hours together at a Shopping Centre (whether they have money to spend or not) than at the H Park. Although the father might prefer they go to the park than the shopping centre, the orders provided for parental compliance with the directions of the supervisor and the supervisor made it clear that she was involving both girls in the decision making process. The father was required to comply.

6. The reports (called “Contact Notes”) of the supervisor also evidence, in my judgment, a need to continue the current arrangements for a while longer. Neither child is reported by the supervisor as having expressed a recent wish to start spending time with her sister in the home of the other parent. Indeed, the reports are reflective of there being no apparent change in the feelings of the eldest girl in respect of spending time in the other home. They reflect that the eldest child may be acting, to some extent, under the influence and instruction of the father in some of her interaction with her sister.

7. Indeed, when I asked the father at the hearing whether he is now aware of his eldest daughter wanting to spend weekend’s at her mother’s home he could only tell the Court that he has a “gut feeling” that she wants to. He did not say that she does.

8. Ultimately, I could not help but feel that the father was advocating for orders that each child spend a weekend in the other parent’s household with the full knowledge that the 14 year old who lives with him would not go to her mother’s, but with an expectation that the 11 year old who lives with the mother would have to come to his home. He asserted that the mother is alienating the youngest child from him. On the evidence, there is little doubt that the 14 year old is alienated from the mother already. The father asserts that is the mother’s own fault. I am at this point unable to determine that is true. I am concerned that it could be just as possible that the father is responsible for that alienation.

9. Just at this point in time, I am far from persuaded that it is in both of these children’s best interests to make an order that each spends every other weekend in the home of the other parent. If they can agree on those arrangements themselves, particularly with input from the ICL and the supervisor/facilitator of the girls’ time together, and it can be assured that both girls will go to the other parent’s home, feeling comfortable and safe, then, of course, it could happen without order. Furthermore, in my judgment, such circumstances might best be led off by the eldest child going to stay at the mother’s home first.

10. Without agreement, I will not order it at this time and I dismiss the father’s application for such an order.

The Mother’s application

1. The mother also sought an order that the word “provisional” be deleted from paragraph 1.2 of the order made by consent on 17 November 2016.

2. Her case is that when her application for the winding up of their company and the appointment of liquidators came before the Court last year, the parties agreed to the making of such an order. Both parties were represented by counsel on the day. The order said “provisional liquidators” were appointed. The mother’s case is that the use of that word “provisional” was a mistake by her counsel, apparently agreed to by counsel for the father.

3. The father does not take issue with that proposition. Rather, he asserts, from the bar table, that he was pressured and coerced into agreeing to that order by his legal representatives on the day, particularly the barrister. He has not said that in an affidavit. He has not given evidence that he complained to the Bar Association or the Legal Services Commission about the barrister’s conduct. He just says effectively that although he agreed on the day to the orders being made it was not a proper exercise of his considered, free will. Significantly, he did not appeal or seek leave to appeal against the order.

4. All too frequently, this Court hears litigants in this Court saying things like that, often simply from the bar table, about their former legal representatives, where those legal representatives are not given any opportunity to put their own side of the story. It is an increasingly worrying phenomenon.

5. In this case, to his credit though, the father conceded when I put it to him that if I did not, prima facie, accept his assertion then there was no proper reason why I would discharge the orders. Initially, he said that the order should be discharged as the appointed liquidators were not doing anything to progress the liquidation. However, the solicitor for the mother tendered into evidence a recent Report to Creditors from the liquidators that evidences them moving on with the liquidation. Indeed, as the solicitor pointed out in his submissions, the report contains assertions that the liquidators are having some difficulties getting responses from the father (who is the director of the company) to their legitimate and reasonable requests.

6. In the light of this evidence, the father quickly gave up the argument that the liquidation should be set aside for failure to be progressed.

7. Ultimately, I am satisfied that the use of the term “provisional” was an error arising from an accidental slip of the drafters, simply adopted by the Court as asked by the parties. A liquidator may only be appointed provisionally pursuant to s 472 of the Corporations Act 2001 after the filing of a winding up application and before the making of a winding up order or, if there is an appeal against a winding up order, before a decision in the appeal is made. In this case, the liquidator was being appointed on the making of a winding up order. Clearly, the use of the word “provisional” was an error.

8. I am satisfied that I can use the provisions of Rule 17.02 of the Family Law Rules 2004 to vary the order as sought by the mother.

9. I will so order.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 September 2017.

Associate:

Date:  22 September 2017