Hodges and Xiu

[2016] FamCA 49

FAMILY COURT OF AUSTRALIA

HODGES & XIU [2016] FamCA 49

FAMILY LAW – PARENTING – interim applications where both parties are subject to s 118 orders – limited leave granted – both applications without sufficient evidence to justify variation on interim basis – questionable basis to allow any re-opening in the future – parties required to file formal leave applications.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Hodges

RESPONDENT: Ms Xiu

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 10 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 February 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application by the father filed on 12 November 2015 is dismissed.

2. That the response by the mother filed on 2 February 2016 is dismissed.

3. Should any application for leave by either party be made hereafter, IT IS DIRECTED that such application be filed with the Court and forthwith served upon the other party who is the respondent to that application.

4. I direct that these reasons be brought to the attention of the coordinating registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodges & Xiu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6222  of 2008

Mr Hodges

Applicant

And

Ms Xiu

Respondent

REASONS FOR JUDGMENT

1. On 12 November 2015, Mr Hodges (the father) filed an application in a case seeking an order that the point at which he regularly handed his son K (aged 13) Ms Xiu (the mother) in their shared care arrangement be altered to a place more convenient to him. The Court listed the case for 12 January 2016 at which time, the mother attended, asked for an adjournment and was given until 22 January 2016 to file any response.

2. On 2 February 2016, the matter came before the Court in the judicial duty list. Notwithstanding the mother had not complied with the filing date of her material, she sought leave for an extension of time to do so.

3. Somewhat ambivalently, the father agreed to the extension of time without knowing what was in the mother’s application. He was, or should have been, aware from what he saw that the mother’s response was voluminous such that a staple would not keep her affidavit together. More significantly, the mother sought 26 orders.  What is not readily apparent from the material of either party is that the child has significant disabilities.  That compounds the problem.

4. Like the father, the mother did not file any document seeking final orders.

The s 118 order

1. The problem that emerged was that on 14 February 2013, Dessau J made the following order:

   That each party is hereby restrained from filing any application under the Family Law Act 1975 (Cth) without first obtaining the leave of a judicial officer.

2. There was no appeal against that order.

3. Neither party had sought the leave of a court to bring their respective parenting applications for orders.

4. After some discussion, the father agreed that the mother could have leave because, apart from anything else, he needed it too. He endeavoured to say that he would agree to the mother having leave only in respect of answering his application but it soon became apparent that this case has not only a long and difficult litigious history but one that will inevitably continue until the child becomes an adult.  There are now, from the mother’s perspective, many problems;  the difficulty is, they are not new.

5. Whilst the father’s application was only about a change of the handover point, the mother’s pursuit of orders was different. Many of the orders are complicated including raising questions of both the jurisdiction and the power of the Court to make orders. Distilled to what is really her application, the mother sought the following:

   ·All parenting orders be discharged;

   ·The mother have leave to issue subpoenae to various health-type organisations;

   ·The mother have sole responsibility for the child’s health and education and the father’s role with the school be restricted including one afternoon per week at the home of the mother;

   ·That the father’s time otherwise with the child be limited to weekends at the home of the paternal grandmother;

   ·The child’s  school holidays be shared;

   ·If there problems arose with weather, the child be transported by car or taxi that is, not by train or walking;

   ·The mother have the child on special days of her choice;

   ·During his time, the father take the child to certain prescribed activities at his own expense;

   ·The approved form of communication between the parents be telephone and failing that, email or text;

   ·The father be restrained from taking the child into hotels, from entering the mother’s home, from stalking her, from sending mail critical of her and otherwise contacting organisations about the child and the mother;

   ·The father return  particular property of the child;

   ·The father apologise to the mother for what he had done to the child in the past and compensate her for certain financial losses she incurred; and

   ·The mother be permitted to travel overseas with the child.

6. This was an interim application in a list where the evidence could not be tested (such as it was) and where the father had not come prepared to deal all of the dot-pointed issues above nor apparently put on notice about them.  There is no simple way of dealing with this application without reference to the 2013 orders and the reasons then given by Dessau J. I propose to take that course.

The father’s issues

1. The father’s evidence was handwritten but succinct. It said that he did not drive a motor car and the child was travelling for over an hour just to fulfil the contact arrangements. He proposed a simpler form of order which enabled that logistical problem to be overcome but it required cooperation and travel by the mother.

2. The mother (at paragraph 4 of her affidavit) addressed the father’s proposal simply by disagreeing and saying that the shopping centre was distant from the father’s home and even more distant from her home with no direct transport from either.  She expressed concern about the fact that she had been kept waiting and that on the evenings of the weekends, it was unsafe particularly having regard for the need for public transport.  The wife observed that it is an hour’s walk from a railway station to her home.  She also observed that there are problems on the train line in her area. 

The mother’s issues

1. The wife kept returning to the fact that there were urgent issues here about health and education. I remain uncertain why they are so urgent absent some evidence which might highlight the concerns of education and health authorities. With discussion, I trawled through the mother’s voluminous affidavit but found little evidence to support the orders she sought.

2. The late filing of her affidavit evoked a response from the father that he disputed many of the facts she alleged. However, there were some with which he did agree such as his keeping the child up late on a Wednesday night and taking him to a hotel. Despite his concession that that had occurred “often” and “perhaps it was not a good idea”, he said that he knew of other children who did it and he had to “balance” his needs and those of the child. He could not really answer the mother’s allegation that the child was tired. He said that the mother was also making the child tired to the extent that when he collected him, and took him to his home on the train, the child fell asleep. There are bigger problems here than that.

3. I am satisfied that for the reasons that follow, both applications must fail.

4. Below, I shall deal with the evidence in summary form as it relates to each of the discrete issues in the dot points set out in paragraph 9 above as best I can.  However, by way of overview, it is sensible to summarise the voluminous affidavit to which I have already referred.

The mother’s evidence about the father’s transport problem

1. The mother observed that the father lost his licence for constant speeding but that there were family members who had cars and driving licences.  She said she had no such luxury. 

2. For the reasons that will follow, I am in a similar position to that of Dessau J in 2013 that there is no easy solution to this problem.  I am not convinced that the “fairness” concept between the parents is the solution.  The focus needs to be on how either option would work for the child.

The dot points in paragraph 9

1. Many complaints were made by the mother about schooling and health.  None of these matters should be given any weight at this stage because of the late filing of the affidavit but also because they were the same issues dealt with by Dessau J in 2013.  Having considered what Dessau J said in 2013, even if the circumstances are somewhat different in 2016, the reality is that they are the same matters that concerned Dessau J.  They are matters that require far more attention than the Court can provide in an interim hearing of this nature.

2. As will be evident from the affidavit material of the mother, she has drawn conclusions that anything critical of her said by the child is attributable to the father.  I would not be prepared to draw those conclusions on this untested evidence.

3. Allegations were made by the mother of the father having stalked her in the middle of 2015.  Unfortunately, she limited her evidence by saying:

   The father again followed me with [the child].  I tried to flee his incessant raving.  He followed stalking me walking very close behand (sic) me with [the child] for more than half hour (sic) at the [Suburb NN] station surroundings and streets.

   Having regard to the usual practice of these parties of involving the police in their dispute, it is hard to know what to make of that evidence.  It is certainly not evidence upon which to make an injunction at this stage bearing in mind that subsequent to that time, further incidents occurred which involved the police and they have not been pursued.  Police did institute intervention order proceedings but against both parties;  they then withdrew them.

4. Despite the truncated hearing and the paucity of evidence, the Court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made.  (Goode and Goode (2006) FLC 93-286).

5. In Goode (supra) the Full Court indicated that the Court should:

   ·    Identify the competing proposals;

   ·    Identify the issues in dispute;

   ·    Identify any agreed or uncontested relevant facts;

   ·    Consider the matters in s 60CC that are relevant and if possible make findings.

The issues

1. This case did not (and does not) fit easily within that approach because of the confusing evidence and the voluminous facts which are hotly disputed particularly because of the child’s disabilities.

2. The competing proposals are set out but each (and more so the mother’s) would have an impact on the child.  The issues in dispute are hard to discern without a careful consideration of what Dessau J was endeavouring to achieve for the child.  Suffice to say, the main issues are that the mother wants to stop home-schooling and to reduce the father’s role in the child’s life.  There is no agreement about anything in this case but reading the 2013 reasons of Dessau J, her Honour had some optimism that the parties could work things out for the child’s benefit.  That optimism has now faded.

3. The context of the current determination has to be seen in what Dessau J was grappling with just 3 years ago. I can do no better than quote from the reasons given by her Honour:

   [The child] is now eleven.  His physical and intellectual disabilities still mean that he requires basically 24/7 care.  He has been the focus of extensive litigation: three major rounds spanning almost 40 days, or eight weeks of sitting time if you look at it that way. 

   There have been two previous very long hearings.  In June 2007 I heard the case over a period of about 10 days, and in June 2011 over about 12 days.  Sadly, these proceedings started within a relatively short time of that second hearing.  The stresses and distractions of so much litigation has taken its toll on the parents and could only be unhelpful to [the child].

   Paradoxically, underlying cause for a lot of the litigation has been because both his parents love the child very dearly and want what is best for him – as they perceive it.  The trouble is they perceive it differently and the added trouble is that they perceive it so fervently. 

4. Despite her Honour’s optimism that she was making final orders after such extensive litigation, the parties are back again. If the court cannot determine what is best for a child on an interim basis where the evidence cannot be tested, it should desist from doing so particularly if no protective issue is apparent. Considering the 2016 complaints, the reasons of Dessau J show that not much has changed.

5. The 4^th of the 13 dot points mentioned in paragraph 9 of these reasons is not new. Dessau J said:

   (the mother) also asked that the father’s time take place at his mother’s home.  I have decided that issue twice previously.

6. There is no new evidence in this truncated case to justify that issue being dealt with as the mother seeks.

7. The third dot point in paragraph 9 belies what is really being pursued by the mother. At the moment (and for at least the last 3 years) the child has been home-schooled by the father on Fridays.  That is an issue very much still alive in the mother’s mind. Dessau J said:

   [Ms Xiu] also wants [Mr Hodges’] home-schooling day with the child to stop.  Again, it is an issue I have already decided twice.

8. The substance of the mother’s evidence is difficult to discern. In essence, she complained that the child was disadvantaged (hence dot points 3 and possibly 12). The evidence relied upon was a school letter and attendance record showing significant absences. The absences were explained by the home-schooling on Fridays and whilst there are obviously some outside of that, the letter from the school principal did not assist. The father had failed to register with the relevant state education department that the child was home schooled so the poor attendance report was raised. The father said he had spoken to the school and it had all been sorted out.

9. Be that all as it may, there is no evidence that the child has been held back as a result of the home schooling. The words of Dessau J above have a familiar ring about them. The mother is unhappy about the schooling but her Honour contemplated that over the many days and hours of hearing. There is nothing new in the mother’s  complaint.

10. It is important to observe paragraph 3 of the orders of Dessau J reads:

    That the father shall be permitted to home-school the child on one day per week during school terms

11. That particular order was made at the request of the parties. Nothing in what I heard or read suggests that on an urgent or interim basis, there is any justification for reconsidering it. Dessau J was satisfied that it was in the child’s best interests. The mother makes much of the fact that Dessau J was close to retiring from the Court at that time. She accuses her Honour of being distracted. Against that, it is important to observe that not only were the orders made by consent but there was no appeal. Thus, at least in relation to the schooling issue, no new evidence of any credible nature was presented.

12. The mother also relied upon an affidavit of a Ms OO who described herself as a retired social worker. I do not propose to give that evidence any weight at this hearing because the father did not have any opportunity to consider it. Further, it expresses various opinions about which there is controversy. Whilst the strict rules of evidence do not apply in this application, there is considerable doubt in my mind (as a result of what the father said) as to whether or not Ms OO is partisan or qualified to express any views anyway.

13. It will also be seen that the mother wanted an order that the father’s role with the school be restricted including, in relation to schooling, that he have one afternoon per week with the child at her home. Dessau J also dealt with that sort of issue by saying:

    [Ms Xiu] has also tried to control the day that the father spends with [the child], by suggesting that he have university students with him who could help with some form of curriculum.  There is nothing intrinsically wrong with that proposal on the mother’s part.  It is well-intentioned, it is well-researched, and I fully understand why she would make that sort of suggestion, but again it is completely impractical to start prescribing what the father can and cannot do on that day.  What these parents clearly need is the autonomy to care for [the child] in their own way in their own homes, subject of course to his particular needs for some continuity and routine.

14. Therefore it would only be reasonable to alter the existing orders if something new has arisen such as to justify a change. Nothing seems like that here. Bearing in mind my reference to the remarks of Dessau J, the Y school report showed the child to have been a happy and “hardworking” member of the class. He has made good progress with speech and communication. His hygiene routine is encouraging. The writer said it would be beneficial if he attended 5 days as distinct from being home schooled but I am very conscious that there are philosophical issues involved in that, all of which were contemplated by Dessau J. Similarly, there are “reports” and “recommendations” about inoculations but I remain unclear whether that is new or so important and it is equally unclear whether the medical practitioners are expressing serious concerns such as would justify overriding the parents’ wishes.

15. The mother proposes (dot points 5 and 7) that the child’s school holidays be shared and she have special days such as Chinese New Year. Whilst there is a suggestion that the mother is doing what Dessau J was concerned about, that is, persisting with issues that should have been put to rest, there is insufficient evidence here to alter the current contact times. I do not know the impact on the father and son relationship there would be if such changes were made. I do not know whether, with the child’s development problems, absence from his father would be confusing and difficult. These are all controversial issues which must be fully canvassed at trial if the mother (or for that matter the father) can show the current arrangements are adverse to the child’s interests or could be substantially likely to improve his life.

16. Dessau J also made the following reference to the parties’ capacity to work things out:

    They have agreed that the mother shall have sole responsibility for the child’s educational decisions, subject to an annual case conference between the parents, schools, health professionals and others.   The father’s involvement at [LL Centre] will continue.  [LL Centre] is the organisation that helps with the child’s communication.  The father initiatlly sought it out and it has been successful.  Also, the father will have mechanisms to obtain information about the child’s educational setting.(my emphasis)

17. Communication is now at a low ebb and this litigation will only exacerbate it. The mother’s evidence spoke of mediation and co-operation but then listed a series of complaints about the father having stalked her and entered her home. The parties required police intervention.  As I earlier indicated, the police took out applications against both parties in the state court but then withdrew them both. All of that suggests that the premonition in 2013 that equal shared parental responsibility was unworkable was correct. It is worse now. In respect of the mother’s complaint about the father’s behaviour and conduct (which formed the foundation for the withdrawn intervention order application), the father explained his jumping the mother’s fence and entering her home unlawfully. He explained the problems encountered at the Royal Children’s Hospital. None of these was easily discernible as family violence. They all seemed (without the evidence being tested) to be problems in which the mother acted unilaterally; she should have involved the father. The very fact that the father did not know of the mother’s documents until midday on the day of the hearing speaks volumes for their focus as parents and their trust in one another. On the untested evidence, I could not find that the proposal of the mother is any more workable than the current orders in respect of communication. Dessau J dealt with that issue too saying:

    Another given for me is that sadly the parents can no longer attend doctors together.  The events in 2011 that led to [Dr G], [the child’s] longstanding GP, and [Dr M], the child’s longstanding paediatrician simply refusing to remain involved with the family make that much clear.  In that context I note the mother’s well-intentioned but totally unrealistic suggestion that they should in the near future be able to attend doctors together.  They cannot. 

    It is a given too that each parent needs to be kept informed and have full access to an understanding of [the child’s] health needs, as they are both caring for him and he does have those special needs.

    It is a given, unfortunately, that neither parent can be trusted to communicate well or fully with the other about these medical issues.  And it is a given that, although I doubt it is deliberate or conscious, there is a huge power play now that is established between the parents so that each is so wedded to their own views that they simply cannot give way to the other. 

    I said in the course of the hearing that there is no ideal solution.  In fact, we are really now a very long way from any ideal solution for [the child].  It has got to the point where I have even had to revisit past solutions that I have rejected. 

1. The mother also seeks injunctive relief (dot point 10) that the father be restrained from taking the child into hotels, from entering her home, from stalking her, from sending mail critical of her and otherwise contacting organisations about the child and her.

2. The mother also sought an order of a property nature such as “the father return the child’s property”. Amongst the items she wanted, were nappies. It was impossible to get the mother to focus on any jurisdictional type of issue about the powers of the court and she was encouraged to get legal advice. If she does so, hopefully, someone will consider the boundaries as well as the words of this Court from the past.

3. All of those matters require a testing of the evidence but it would certainly seem that, just as Dessau J was not optimistic about a shared parenting resolution, the same must be said now for the future. It may be that, as her Honour said:

   The second concern that I have is one that I cannot solve today.  I want to put it on the table so that the parents understand that if this concern comes to reality, there will be no option but the most draconian measures in relation to the care of and decisions for [the child].  The concern is that there is still an obvious potential for the parents, either together or separately, to alienate various experts involved in [the child’s] care. 

   I have seen instances of the mother pushing on issues long-closed, that have clearly caused anxiety and distraction to doctors who have been asked to deal with issues that are not medical in nature, and they have been drawn into litigation when they are far too busy looking after sick children and others.

   I have also seen the father questioning beyond a reasonable or useful amount, for example alienating the school in the manner that he has done in the past. 

   The stakes are high for both these parents now, because the court simply has run out of options.  It is the last throw of the dice for both of them and if this matter returns to the court I cannot see any solution other than the solution proposed by [Mr O], the psychologist the father has been seeing, that possibly a guardian for the child would need to be appointed by another tribunal, so that someone outside the family, unrelated to either of these loving parents would, in fact, be the person charged with the responsibility to make decisions for him. (My emphasis).

4. Whichever court or judge hears this case, those last words may have to be the focus because prophetically, Dessau J said:

   (T)here must be a stop to this endless litigation and it is very hard for me to feel confident that it will occur.  I am concerned that there is a mindset in this family that the court is the place of first resort when there is an issue with the child. 

5. Some of the facts upon which the mother relied for this application were not disputed by the father.  For example, he concedes he jumped the mother’s gate when he could not ascertain why he was not being given the child.  He said he heard voices in the house in circumstances where he could not otherwise get a response.  The reasonableness of that needs to be tested in a comprehensive way, not on submissions.

6. Similarly, it is said by the mother that the father has hounded the local council putting her entitlement to services at risk.  Just what that is all about remains to be seen.  Dessau J gave the father the right to obtain information about the child.  There is no evidence from any of those sources to indicate any frustration by them.  I understand the mother’s complaint was about the inquiries she made of her situation.  Whether or not there is substance to those complaints, I cannot determine on this evidence. 

7. In a case such as this, injunctive relief should only be granted if it is proper.  I could not find that such an order would be proper at this stage.  Similarly, there is no application for substantive injunctive relief in any event.  I do not know what right the mother is endeavouring to protect.  It would not be proper to make an order in those circumstances.

8. The mother then sought an order that she be permitted to travel overseas with the child but that was not founded in any evidence of substance. Nothing addressed the welfare of the child and the impact of such a trip. It is not a matter that could be determined on the papers.

9. Thus, it can be seen that in considering the first dot point in paragraph 9 (that all parenting orders be discharged), there is insufficient evidence to enable me to draw any conclusion that the child is disadvantaged, suffering or in need of protection as a result of the extant orders. There is insufficient evidence to enable me to find that the current orders do not meet the child’s current needs. The proposals therefore of the mother should not be adopted.

10. There is also little I can find in the mother’s proposals about communication that would make the child’s life better.

11. In all of this, I have not ignored the father’s application. He sought a change of handover point. The evidence does not enable me to conclude how the existing arrangement impacts upon the child. I appreciate that the travelling is inconvenient and cumbersome for the father but I remain unconvinced of its impact on the child. The father’s proposal required co-operation of the mother. On the basis of what I have said above, I would be hesitant to expect that. There is therefore insufficient evidence to enable me to make any finding on the controversial evidence. That application must fail.

12. When making a parenting order, the Court is obliged (s 60CA) to consider the best interests of the child as the paramount consideration.  Here, I am not making any parenting order and therefore it is unnecessary for me to refer to any of the provisions in s 60CC to determine what is in the best interests of the child.  Similarly, it is not necessary that I consider the parental responsibility issue by virtue of the fact that Dessau J made that particular order on a final basis in 2013.  No new evidence suggests it should be re-opened.

Procedural issues

1. By way of procedural orders, the mother wanted to issue subpoenae to the organisations with whose services she and the child are currently connected. That seems to be about her allegation that the father is causing those organisations problems or infringing her privacy. Absent some evidence as to their complaint or frustration, I would not make that order anyway.

2. If the organisations were so concerned about the father, they would presumably volunteer to support the mother.

3. Thus, as a litigant without legal representation, the mother should not be permitted to issue subpoenae without careful consideration to the relevance of the pursued information to the substantive issue in dispute. I am not prepared to make such an order.

4. Subpoenae are court orders and amount to an infringement on privacy but the fundamental question is whether the documents specifically sought have apparent relevance to the issues to be determined by the court. The immediate difficulty is that there is no application seeking final orders. There cannot be until such time as the court gives leave because of the order of Dessau J.

Leave to proceed

1. I would not be prepared to give leave on the basis of what the mother might do. The only leave I have immediately given relates to these interim applications. A formal application should be made by both parties if the 2013 orders are to be varied. That application must be made to a judge with some supportive evidence that would convince the Court that new facts and circumstances have arisen such as to justify re-opening the case. Whilst the mother makes bald assertions and says that she has spoken to various people, there are a number of critical people such as the school principal and the child’s main medical practitioner who could give that evidence. The mother relied upon a letter annexed to her affidavit from Dr C but a close examination of that enables me to conclude that the opinion was based on what the doctor was told by the mother.

2. To be clear for the benefit of the parties but also court staff, the s 118 orders made in 2013 still stand.  The leave I have given to enable determination of this application is limited.  The dismissal of the application in response means there is no extant proceeding. 

3. To deal with the looming arguments and desires of the parties, leave will be required. The judge will make his or her own assessment about whether it should be granted but for the assistance of the Court, the process should be an application in a case restricted to leave supported by an affidavit to which a draft application for final (and if necessary, interim) orders should be attached. The irony of the situation here is that s 118 was designed not so much to preclude access to the court and justice but to prevent the “other” party being inconvenienced by unnecessary involvement in proceedings where there was no serious cause of action. Here, the prophetic words of Dessau J indicate that the parties probably should serve each other with their respective applications for leave but the Court should be alert to the problem of documents being filed which are just a stream of consciousness rather than evidence that meets the requirements of ss 55 and 56 of the Evidence Act 1995 (Cth). I propose to make the orders to enable the service on each of the other parties.

I certify that the preceding Fifty Nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 February 2016.

Associate: 

Date:  10 February 2016