HILLSMITH & OLIVER

[2018] FamCA 465

FAMILY COURT OF AUSTRALIA

HILLSMITH & OLIVER [2018] FamCA 465

FAMILY LAW – CHILDREN – PARENTING – INTERIM – Short term parenting orders – a conservative approach.

APPLICANT: Ms Hillsmith

RESPONDENT: Mr Oliver

FILE NUMBER: MLC 2190 of 2018

DATE DELIVERED: 27 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Oliver in person

SOLICITOR FOR THE RESPONDENT: Mr Oliver in person

Orders

IT IS ORDERED THAT:

(1)This matter be fixed for interim hearing before me on 26 April 2018 at 10.00 am estimated to take one half day (“the adjourned date”).

(2)Each party file and serve an undertaking as to disclosure by 15 April 2018.

(3)By not later than 16 April 2018 the husband file and serve any response to the wife’s amended application filed this day.

(4)Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court and:-

a)      The mother is to attend at Level 5 of this Registry of the Court at 9.00 am on 28 March 2018;

b)      The father attend at 11.00 am on 28 March 2018;

c)      The mother be responsible for bringing the children X born … 2007 and Y born … 2013 (“the children”) to the Registry on the same date and time of her own appointment:

d)      The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

e)      The parties sign and complete the acknowledgement form for the Child Responsive Program;

f)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

g)      The Family Consultant may appoint further interviews for the parties and the children; and

h)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court on or before Thursday 12 April 2018

(5)The Family Consultant is required for cross-examination on the adjourned date unless notified by the independent children’s lawyer to the contrary prior to 12 April 2018.

(6)That for the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

(7)That pursuant to Section 68L(2) of the Family Law Act 1975 the children X born … 2007 and Y born … 2013 (“the children”) be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

(8)That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

(9)That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

(10)IT IS REQUESTED that the family consultant provide an opportunity for the independent children’s lawyer to meet with the children tomorrow.

(11)To the extent necessary, each party is at liberty to cause subpoena(s) to issue until the final hearing date.

(12)The wife produce the iPhone of the child X and iPad with black cover of the family/husband to the Subpoenaed Documents Clerk on Level 1 of this Registry by 8.45 am tomorrow, 28 March 2018 and such items be available for inspection by or on behalf of the husband until 4.00 pm on March 28 2018 when the wife is at liberty to collect and retain them save for the iPad which the father is at liberty to collect and retain.

IT IS ORDERED BY CONSENT THAT:

(13)Until further order, the wife have sole use and occupation of the family home at C Street, Suburb D in the State of Victoria (“the Suburb D property”).

IT IS FURTHER ORDERED THAT:

(14)Until 26 April 2018, being the adjourned date for this matter, the children X born … 2007 and Y born … 2013 (“the children”) live with the mother and spend time with the father from 10.00 am to 5.00 pm on the following days:-

a)      Thursday 29 March 2018;

b)      Wednesday 4 April and 25 April 2018;

c)      Sunday commencing 8 April 2018; and

d)      as may otherwise be agreed and confirmed in writing by the husband and the wife’s solicitors.

(15)Unless otherwise agreed, changeovers for time spent will take place at the front door of the Suburb D property.

(16)I reserve liberty to the independent children’s lawyer an any other party to the proceedings to apply urgently on 28 March 2018 in the event that the family consultant expresses a view to the independent children’s lawyer that the interim parenting arrangements provided herein are not consistent with the best interests of the children and ought to be suspended or revised prior to the hearing on 26 April 2018.

(17)The independent children’s lawyer do all acts and things necessary to obtain a psychiatric assessment of both parents by Dr B or, if he is not reasonably available, such other psychiatrist nominated by the independent children’s lawyer with the parents to each pay one half of the reasonable costs of the assessment, such contribution to be paid not less than 10 days before the first appointment and be paid to Victoria Legal Aid or otherwise at the direction of the independent children’s lawyer and disbursed to Dr B upon production of his report.

(18)Upon receipt, the independent children’s lawyer be responsible for sending a copy of Dr B’s assessment to my Associate to be kept on the Court file.

(19)The wife provide discovery to the husband of any documents in her possession custody or control as described in paragraphs 3 and 4 of the husband’s Response filed 26 March 2018 and do so by not later than 16 April 2018.

(20)That the husband be restrained by injunction from posting on the internet, including any social media, information about the proceedings, including the existence of the proceedings of any outcome of the proceedings.

(21)The husband be restrained by injunction from discussing allegations and evidence in the proceedings with the children.

(22)The parties keep each other advised of their current residential address and mobile telephone number and advise the details of any changes within 48 hours prior to any change in those details.

(23)Each parent advise the other of any medical emergency or serious injury/illness suffered by the child whilst in his/her care as soon as possible.

(24)Neither party denigrate the other, their respective partners, family or friends whether directly or in the presence of the children, and will use their best endeavours to ensure that no one else does so and will remove the children from any environment where denigration is occurring.

(25)The parties and lawyers on the record attend a Conciliation Conference with a Registrar on 21 June 2018 at 9.15 am.

(26)Each party must exchange at least 14 days before the Conciliation Conference the following documents if relevant and not already exchanged:

a)      the party’s three most recent taxation returns and assessments;

b)      any superannuation documents for each superannuation interest of the party, including:

i.the completed Superannuation Information Form;

ii.for a self-managed superannuation fund, the trust deed and the last three financial statements;

c)      for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

d)      for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

e)      for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s memorandum and articles of association;

f)      for any trust, the trust deed;

g)      for any partnership, the partnership agreement;

h)      a market appraisal of any item of property in which a party has an interest;

i)      All documents containing evidence about:

i.the financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

ii.financial contributions made at the commencement of cohabitation;

iii.any inheritances, gifts or compensation payments received during cohabitation;

iv.any purchase or disposal of property in the 12 months prior to and since separation;

v.any increase or reduction of liabilities since separation; and

vi.the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

(27)That each party exchange a market appraisal or valuation of any asset in dispute no later than 14 days before the conciliation conference.

(28)The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings.

(29)That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

IT IS DIRECTED:

(30)That my reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.

AND IT IS NOTED BY THE COURT

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

B.The husband has provided discoverable documents to counsel for the wife for copying overnight and return to the husband tomorrow.

C.The husband seeks a reasonable opportunity to collect personal belongings and possessions including gardening equipment from the family home at C Street as soon as practicable.

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 Hillsmith & Oliver 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 2190 of 2018

Ms Hillsmith

Applicant

And

Mr Oliver

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as the adjourn date of an unopposed application which was brought last week and in which I made some urgent holding orders in relation to finances.  Since that time, both the applicant wife and the respondent husband have put on an amended application and a response seeking parenting orders.  And the focus of today’s brief hearing has been the children, who are X, aged 10, and Y, aged nearly five years old.

2. Mr Dickson of senior counsel appears on behalf of the wife, who attends court.  The husband appears in person, and he is accompanied by his parents.  I have not permitted either party to cross-examine the other, and I have had regard to the material which has been filed since the last hearing. 

3. Fortuitously, there is an opportunity for the family to be seen tomorrow for an s 11F parent and children’s issues assessment, and I will make orders in those terms.

4. I will also request Victoria Legal Aid to provide an Independent Children’s Lawyer and to do that this afternoon so that that Independent Children’s Lawyer may meet the children tomorrow with the family consultant if at all possible.

5. I require at some early juncture that the Independent Children’s Lawyer to organise an assessment of the parents by Dr B.  Or, in the event that he is unavailable, such other appropriately qualified person as the Independent Children’s Lawyer nominates.  The parties are to bear the cost of that equally.

6. I have made parenting orders to interim parenting orders that will operate only until 26 April 2018.  It is not controversial that the father will be able to seek different and other parenting orders, including overnight time with the children on the 26^th of April 2018. 

7. Prior to that date, namely on or about 12 April 2018, the section 11F assessment will be available. As with all proceedings involving children, I am required to make orders which have as the paramount, but not the only, consideration the best interests of the children.

8. It is common ground that the parties separated last year.  It is a fairly recent separation.  However, there had been an agreement reduced to a marked calendar of when the father would be seeing the children.  The father says that that has deteriorated or been restricted by the mother since December 2017.  If that is correct and that was done without just cause, that is unfortunate.  But the fact of the matter is that the father attends court today not on his own application but in response to that of the wife.  If he was concerned about the restrictions that were being imposed by the mother since December 2017, I would have expected to see him in court on his own application before today.

9. The father steadfastly wants overnight time with the children. He submits that would meet their needs, that’s what they are “pining for” and it would most easily allow them to see their paternal grandparents who reside in E Town, which is approximately one hour from the former family home from whence the children will be collected from and returned for the purpose of their time with the father.

10. I have adopted a particularly cautious approach between now and 26 April, and I do so based on concerns raised by the wife.  Two of those concerns are Facebook postings which the husband has caused to be made on his Facebook page which are obvious enough to the wife and, I would imagine, to people who know the husband and have access to or look at his Facebook page.  They are worrying.  They appear at pages 105 and 6 to the wife’s annexures to her affidavit material.  I will not detail them.  They are common to both parties. 

11. Nothing adverse to the father’s parenting case should be read into the fact that these are orders for daytime periods with the children only.  It may well be that after the next hearing, overnight time is ordered.  That would be unlikely, however, to occur if the father does not have a fixed place of abode to take the children or which is reasonably convenient to take the children for overnight times. 

12. If he does select accommodation for overnight stays by the children, he would be well advised to give the wife adequate notice of that so she can consider it and be in a position to respond.  It would be unfortunate to get to 26 April and for the father to make a proposal about where he was going to live with the children and the wife says that she does not know anything about that location.

13. Otherwise, I have made orders of a procedural nature, which will take the matter to the next date. 

14. In this case, there are allegations of concerning behaviour by both parents against the other.  Hopefully, they will be addressed by expert evidence.  However, I am alive to the allegations of family violence.  I am also mindful that the court’s role is to assess the benefit for the children of a meaningful relationship with both parents.  And that, at this point, puts the father in the spotlight. 

15. There are numerous additional considerations to which I have regard to the extent that they are relevant.  One is the views of the children.  The evidence on that is somewhat equivocal, but I note that the father is very firm in his assertion that the children particularly want to see him.  And he places reliance on at least one electronic communication between one of the children and himself.

16. I take into account the fact that these orders that I make on an urgent interim basis will represent somewhat of a change to the children.  They were seeing the father regularly, but then have not seen him since 12 March.  This is an unsettling time for the children, in any event.  The additional considerations are really more pertinent to longer term matters. 

17. I am satisfied that the orders I have made in discussion with the father and with Mr Dickon of counsel are consistent with the children’s best interests.  However, I note that the father certainly does not consent to the time that has been ordered and that sought more extensive and more regular time than that for which I have provided.  That concludes the reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 March 2018

Associate: 

Date:  20 June 2018