Hough and Willis

[2012] FamCA 407

FAMILY COURT OF AUSTRALIA

HOUGH & WILLIS [2012] FamCA 407

FAMILY LAW – INJUNCTIONS - Injunction sought against husband, his lawyers and various professionals to prevent him being made aware of the mother’s new partner and her personal circumstances - Wife argues that the power to make the order lies in s 68B of the Act - Ruling that s 68B does not extend that far.

Family Law Act 1975 (Cth)

Eldridge and Eldridge [2010] FamCA 272
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) FLC 93-174
Twist v Randwick City Council (1976) 136 CLR 106

APPLICANT: Ms Hough

RESPONDENT: Mr Willis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2101 of 2011

DATE DELIVERED: 31 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Trim

SOLICITOR FOR THE APPLICANT: Waters Lawyers

COUNSEL FOR THE RESPONDENT: Mr Crozier-Durham

SOLICITOR FOR THE RESPONDENT: David Stagg Tonkin & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelsen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE Family Lawyers

Orders

1. That paragraph 4 of the orders made on 16 April 2012 is discharged.

2. That paragraphs 3-7 of the orders made on 29 May 2012 are discharged.

3. That the application in a case filed by the wife on 31 May 2012 is otherwise dismissed.

THAT UPON THE ORAL APPLICATION OF THE WIFE FOR AN INJUNCTION, WHICH IS NOT OPPOSED NOR CONSENTED TO BY THE HUSBAND BUT CONSENTED TO BY THE INDEPENDENT CHILDREN’S LAWYER, IT IS ORDERED:

1. That until further order, for the personal protection of the mother, the mother’s husband and the wife’s children, the father be restrained including any person acting with his authority or permission from:

   (a)seeking to ascertain the residential address or employment address of the wife and the wife’s husband;

   (b)approaching within 100 metres of the wife’s residential address or employment address and her husband’s residential address or employment address;

   (c)approaching or seeking to approach, within 10 metres of the wife, the wife’s husband, or any of the wife’s children save in accordance with any parenting order made by this Court.

2. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Cronin at 2.15pm on 22 June 2012.

3. That the parties and if represented, their legal practitioners, attend the first day of hearing.

4. That notwithstanding applications/responses have already been filed:

   (a)by 4 pm on 14 June 2012, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   (b)by 4 pm on 20 June 2012, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

5. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposed and on the return date, present to the Court a copy of those orders.

AND THE COURT NOTES:
If a party does not comply with paragraph 7 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hough & Willis 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: DGC 2101  of 2011

Ms Hough

Applicant

And

Mr Willis

Respondent

REASONS FOR JUDGMENT

1. This discrete hearing concerns the principle of whether a litigant’s access to evidence and/or information about which the Court is determining a parenting dispute can be fettered. It involves the question of the clash between the powers of the Court in s 68B of the Family Law Act 1975 (Cth) (“the Act”) and the principles of natural justice.

2. The fettering proposed by the wife was a blanket prohibition on lawyers, health professionals and even a family consultant from disclosing to the husband “the identity and background of the other litigant’s partner”.  Innocuous as that might appear on its face, a trial conducted on that basis would have severe handicaps for the Court let alone the parties. 

3. The facts of this case need some careful examination.  The parties began living together in 2004, married in 2008 and separated in 2010.  The one child S (“the child”) is aged five years.

4. On 1 September 2011, the wife filed in the Federal Magistrates Court an application seeking final orders.  It is somewhat confusing as to why that was done but in the application, she sought that she have sole parental responsibility for the child, that the child reside with her and that “The father spend time with the child as determined by the Court”.

5. On 18 April 2012, the father filed a response in the Federal Magistrates Court saying that he wanted final orders that he and the wife have equal shared parental responsibility for the child, that the child live with the wife and “That the father spend time with the child as determined by the Court”.

6. The facts underpinning the respective applications are set out in what could only be described as vague affidavits.  Whilst I accept that it is the procedural requirement of the Federal Magistrates Court to file an affidavit at the beginning of the proceedings which would usually be the evidence relied upon, it is unfathomable in this case that the affidavit filed on 1 September 2011 could possibly assist a court to determine a seriously difficult parenting dispute. 

7. In her affidavit, the wife said that she was 30 years old and a pensioner.  She said the husband was 35 years old and had previously worked in the transport industry.

8. Albeit that the picture portrayed in this affidavit was nothing short of bleak, the wife deposed to the fact that the parties separated in September 2008 but reunited for approximately three months around January 2010 until separation finally in April 2010.  The father disputed the timing of the reuniting but otherwise did not disagree.  It makes no difference.

9. The wife also said that she had two children from a previous relationship who are now almost 16 and 11 respectively.

10. It was the wife’s evidence that when the husband was drinking, he would become very angry and violent.  The husband agreed.  However, he limited his behaviour to times when he was under the influence of alcohol and/or drugs.

11. The wife deposed to the fact that in around August 2006 when pregnant with the child, the husband seriously assaulted her when he came home in a drunken state.  The assault itself was described in her affidavit.  It was sickening.  She said that the husband was convicted of criminal charges out of that incident and she believed “he only received” a suspended gaol sentence.  The husband agreed with all of that.  It will be noted from the history that the parties married after that date.

12. The wife went on to say that during the relationship she “endured extreme family violence”.  She confirmed again that they were usually exacerbated by the use of drugs and alcohol and the husband’s response was that both she and he were drinking heavily and taking amphetamines.  He said that these bouts would often last for three or four days and end in big arguments which would often become physical.  Appalling as that may sound, neither party descended into any detail and the Court is left to speculate about what all that meant from the perspective of both parties.

13. Despite this extreme violence, the relationship went on including the reuniting as described.  The wife said that the relationship ceased in April 2010 when the intoxicated husband assaulted her, threatened to kill her and kept the child hostage for around one hour which led to the husband being arrested and charged.  The husband descended into some more detail than that denying the hostage incident but said they were arguing on the front lawn of the house and “a fight broke out”.  The husband said that the child came out and witnessed her mother crying.  The husband eventually left the home and went to stay with a friend but he agreed that he was arrested and charged.  I have no idea from those affidavits what the outcome of the proceedings were nor what view a sentencing judge or magistrate might have felt about the seriousness of the issue.

14. The wife’s brief affidavit said that the child suffered greatly because of the husband’s behaviour and the husband agreed save that he added that the wife had contributed as well.

15. The wife said that the problems that she was having with the child included separation difficulties, speech problems, social difficulties and so forth.  Those problems were apparently dealt with by a psychologist but what problems they were or how they were treated remained unsaid.  In addition, no affidavit was forthcoming from the psychologist.

16. The wife went on to say that her problems associated with the child were documented by the Department of Human Services.  How that happened remains unsaid.  Whether the issues arose as a result of some mandatory reporting or complaint by a concerned citizen or relative is also unsaid. 

17. As the husband was also a litigant pursuing parenting orders, particularly as he indicated that he would leave it to the Court to decide, it was perplexing that he said in his affidavit that he could not comment on the difficulties that the wife was having with the child.  He also knew nothing apparently about what the Department of Human Services was doing.

18. In her affidavit, the wife said that the Department had “previously been involved” with the family.  They went so far as to take proceedings in the Children’s Court.  She said their concerns were that the child was being exposed to family violence perpetrated by the husband but if the husband had participated in any discussions and made the sort of statements that he did in his affidavit in reply, presumably the Department was aware that there were allegations of a dysfunctional household on both sides.

19. The wife said that the husband had not seen the child since October 2010.  The husband agreed.  Why that was so from the husband’s perspective let alone that of the wife, remained unspoken.

20. The wife had an intervention order against the husband but let it lapse.  Her counsel observed in submissions that she had no faith in the intervention order system and whilst that is not said in her affidavit, it runs completely counter to what was submitted from subpoenaed material from Victoria Police to show that the husband has been charged on two occasions with breaching intervention orders and has been dealt with modestly or relatively lightly by a court.

21. It was common ground that there is no intervention order now extant.

22. Nowhere in the affidavit was there any reference to her living circumstances other than the vague residential arrangements and it was because of that problem, the s 68B issue arose to which I shall return.

23. The wife was able to describe however what the husband was doing because she said he was residing in H Centre which is a drug therapeutic centre where treatment is given for drug and alcohol difficulties.  Not only did the husband agree with that but set out in some details the various levels that he had been through to the point where he said he has had psychological evaluations done and they indicated that he had showed steady progress to the extent that he was now “mentally stable”.  The subpoenaed material seems to say otherwise.

24. His affidavit made clear that he understood his past behaviour and actions which were as a result of the influence of drugs and alcohol and that he had caused great emotional and physical damage and he wanted to apologise. 

25. The husband’s affidavit was not filed until 18 April 2012 when he filed his response.  This was not only months after the wife filed her application but also after the hearing in the Federal Magistrates Court.  It was prepared with legal advice.  What he said was that he had a tragic background which included assaults and there was the potential for the police to involve him in a claim against a priest in the future.  He referred to the fact that his home life was dysfunctional and he left that home to begin dealing in drugs.  He began taking bets relating to fights that he was involved in and he lived on those monies and drug dealing proceeds.

26. The husband too descended into the vagaries of the relationship because he said he believed that the wife had a severe personality disorder.  That evidence of opinion from a person with no professional qualifications has no probative value.

27. According to the husband, as he was clear of the drug problems, after significant periods of time in H Centre, he has begun working as a casual in the transport industry since February 2012 and is living in shared private rental accommodation.  He would have the Court accept that he has turned the corner and now wants to be a responsible parent let alone citizen.

28. On the face of that material, the Court would be entitled to conclude that much work was to be done to change the dysfunctional to functional and for the child to have the opportunity of a meaningful relationship with a father who had behaved appalling and irresponsibly as a parent but who had now turned the corner.  Whether the damage that was done could be undone was a matter for evidence from the professionals.  However, when the matter came to court, it transpired that the Independent Children’s Lawyer became aware that the mother had begun a relationship with a man who is a registered sex offender and with whom she now has a very young baby.  Because of the concern for the safety of the children, herself and her new partner, the wife requested that there be a blanket prohibition on the husband being aware of any of the details about her circumstances including her new baby and her partner.  The matter came on before Riethmuller FM who he felt it appropriate to transfer the proceedings to this Court and as a matter of precaution, although indicating he had doubts about the jurisdiction, made orders which effectively precluded the husband being able to discuss the matter of the wife’s new circumstances with his lawyers and more importantly, they with him.

29. The matter came on then before Senior Registrar FitzGibbon who felt that it was appropriate that the matter be transferred to a judge and that the matter needed some argument about the extent of the power of the Court to make the order.

Submissions

1. Both the Independent Children’s Lawyer and counsel for the husband submitted s 68B did not go as far as the counsel for the wife asserted it did.

2. Counsel for the wife submitted that the Court had power to make an order granting an injunction from learning the identity and background of the mother’s current partner, discussing that identity and background with anyone should he become aware of it, authorising anyone to seek to discover that identity and background and from being present in court when the identity and background were discussed.  The injunctions also were sought to be extended to discussions with his lawyers save for the legal ramifications of the injunctions.

3. Counsel for the wife also sought an order that the parties’ lawyers and legal representatives be restrained from disclosing to the husband that identity and background and also any family report writer, psychiatrist or other expert along with servants and agents concerning the same matter.

4. Counsel for the wife acknowledged that there was no specific authority he could point to directly on the issue.  By that, he was referring to authorities of this Court.  He pointed to circumstances in which injunctive orders were made without notice to parties (see Eldridge and Eldridge [2010] FamCA 272). Those cases are not really relevant because they were injunctive orders against the litigant from having contact with the child, her mother and the mother’s partner for the purposes of protection of those people. In Eldridge, the orders were made during a contested hearing where the facts upon which the order was made, were well-known to the husband.  The husband had left the hearing before it concluded.

5. Counsel for the wife pointed to the power of the Court to injunct solicitors from continuing to act for a litigant but that was hardly controversial and had nothing to do with this particular issue. The power to make such an order was certainly not made under s 68B.

6. Counsel endeavoured to argue that injunctions made on an ex parte basis were similar to the situation here.  Those injunctions were generally on an interlocutory basis.  That is not what is sought by the wife.

7. Part VII of the Act is clearly just concerned with children and its main object set out in s 60B is to require parents to act in ways which will be beneficial for their children. There is nothing in Part VII that would specifically empower the Court to simply make an order relating to or against a person just because it might be deemed to be in the best interests of the child.

8. In a similar vein, counsel for the wife argued that s 65DAE of the Act makes a specific provision which excludes from the definition of major long term issues, living arrangements which include a party commencing a new relationship. That too is not to the point.

Discussion

1. Section 68B of the Act provides that in proceedings for an injunction in relation to a child, the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. The wide definition is unlimited although the section goes on to provide the circumstances in which such an injunction might be made most of which relate to personal protection of a child or persons who are caring for that child. The power of the Court is to make an interlocutory order or otherwise in any case in which it appears to the Court to be just and convenient to do so. That injunction can be granted unconditionally or on such terms as the Court considers appropriate.

2. Counsel for the husband argued that the power is effectively wide enough for this order to be made.

3. In my view, the scope of s 68B is not unlimited. In Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) FLC 93-174, the High Court held that there was no jurisdiction under the Act for this Court to order that children be released from immigration detention. There was a discussion about s 68B and it was relied upon as part of the power. The High Court said that jurisdiction under s 68B was limited to the parental responsibilities of the parties to a marriage for a child of the marriage. That must raise questions as to whether or not the power extends to the Court to make orders against third parties such as the lawyers and professionals to whom it was sought to address the order.

4. In MIMIA v B (supra) Gleeson CJ and McHugh J reminded the Court that the Family Court of Australia was a federal court created by the parliament and its authority to decide matters had to fall within ss 75, 76 and 77 of the Constitution. It is not an unlimited power. Despite the wide language of s 68B, the provision must be governed by the context of Part VII of the Act. In my view, there is no power to make orders which would involve the lawyers, health professionals and a family consultant in the way in which the wife asserted.

5. It is conceivable however that such an order could be made against the husband personally.  Sound as that may appear, the practicality is that for the husband to be excluded in some way from having access to information otherwise known to everyone else, including the Court, is a complete anathema to the principles of natural justice.  Natural justice or the principle of procedural fairness underpins everything that a court does.  If parliament was intending to exclude procedural fairness, its legislation must be unambiguously clear.  (See Twist v Randwick City Council (1976) 136 CLR 106 per Barwick CJ). Indeed, the Family Law Rules 2004 make a specific provision of the right of a litigant to be heard. The same right entitles the litigant to be legally represented.

1. In Kioa v West (1985) 159 CLR 550, Mason J (as his Honour then was) said that a person was entitled to know the case against them and be able to reply to that case if it was likely the decision would be made that would deprive them of some right or interest or legitimate expectation of a benefit. His Honour said that the common law duty to act fairly imposed upon a court was subject only to alteration if there was a clear manifestation of a statutory intention to do that.

2. I have endeavoured to fairly set out the evidence presented to the Court which presumably was the basis upon which the parties expected a decision to be made.  It is clear that the wife’s fear of what might happen to her, the child, her other children and her new partner is founded upon the husband’s appalling track record as she would have the Court accept.  As I pointed out to counsel, the evidence was vague and no-one had obtained the sentencing remarks of the relevant criminal courts.  For example, if the courts had taken the view that the breaches of the intervention orders were not warranting condign punishment, it may be that the sentencing judge took into account a variety of mitigating factors that might be relevant to a parenting dispute.  If for example, such a court considered that the wife had contributed to the problem in some way, that too might be treated by that court as a mitigating factor.  However, in a parenting dispute, this Court’s focus is on the best interests of the child and specifically in relation to the issues of protection of children from family violence.  If the husband was unable to know the full case upon which the wife is conducting her application, it would be the Court being deprived of a comprehensive explanation.  If the issue was confined to the question of the wife’s current living circumstances, her conduct in the past as a parent might very well be relevant.  As another example, s 60CC(4) requires a court to look at what has happened since separation and one might wonder why the husband has not seen the child for so long.  If the wife’s explanation is her new personal circumstances, any injunction precluding the husband from knowing any of those details would hamper the Court from working out what was best for the child.

3. All of those examples are indicative of the problem to which Mason J referred when indicating that a person was entitled to know the case against them. But in Part VII of the Act, the onus is on the Court to make a determination which it considers is in the best interests of the child and the only way that can realistically occur is if all of the possible evidence available to make that decision is before the Court.

4. Thus, subject to appropriate protections being put in place which are otherwise contained in the Act, there does not seem to me to be any reason why the husband should not be fully apprised of the circumstances under which the child is living. Counsel for the wife pointed to the fact that the husband was only seeking a contact arrangement but that too might change. As I pointed out, litigants often seek orders which have no foundation and no prospect of success but it is the Court’s obligation to hear and determine the application before it.

5. Finally, I am very mindful of the fact that Division 12A of Part VII of the Act imposes upon the Court a mandatory requirement that it decide which of the issues require investigation and those which should be heard and determined summarily. It is the responsibility of the Court to decide the order in which issues are to be decided and to give directions about how the proceeding is to be conducted. Section 69ZT requires that some of the rules of evidence not apply except in the exceptional circumstances set out in the provision. Without the Court being able to call upon the husband to indicate his position in relation to all of the matters, it is hard to see how a determination can be made that is in the best interests of the child even if it only relates to the issue of what time if any, she spends with her father.

6. For those reasons, I propose to discharge the existing injunctive orders and to otherwise determine the substantive hearing date.

I certify that the preceding Forty Eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 May 2012.

Associate: 

Date:  4 June 2012