HUMPHREY & HUMPHREY

[2014] FCCA 456

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUMPHREY & HUMPHREY [2014] FCCA 456

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – Application to vary earlier interim parenting orders – where final hearing to take place in September 2014 – where Application misconceived – where evidence insufficient to vary or discharge existing parenting orders.

FAMILY LAW – Children – Independent Children’s Lawyer – where interests of children to be independently represented by a lawyer in accordance with Family Law Act 1975 (Cth) s.68L.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CF, 61DA, 62G, 65D, 65DAA, 67ZC, 68B, 68L, 114.

Mental Health (Forensic Provisions) Act 1990 (NSW) s.32

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Humphrey & Humphrey [2013] FMCAfam 199
Re K (1994) 17 Fam LR 537; FLC 92-461
L & T [1999] FamCA 1699; (1999) 25 Fam LR 590; FLC 92-875
Mortone & Mortone [2011] FamCA 309

Applicant: MR HUMPHREY

Respondent: MS HUMPHREY

File Number: SYC 6843 of 2012

Judgment of: Judge Scarlett

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Sydney

Delivered on: 12 March 2014

REPRESENTATION

Solicitor for the Applicant: Ms Carter

Solicitors for the Applicant: GP Legal

The Respondent: In person

ORDERS

1. The Application in a Case filed on 10 December 2013 is dismissed.

2. The Response to an Application in a Case filed on 26 February 2014 is dismissed.

3. The interests of the children [X] born [in] 1998 and [Y] born [in] 2000 are to be independently represented by a lawyer under the provisions of subsection 68L(2) of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to arrange this representation.

4. Within fourteen (14) days of the date of this Order the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney, for the use of the Independent Children’s Lawyer when appointed, copies of:

   (a)The Reasons for this Decision;

   (b)The Reasons for the decision of this Court on 6 March 2013; and

   (c)All Applications, Responses, Replies, affidavits and other relevant documents.

5. The Independent Children’s Lawyer when appointed is granted leave to issue up to ten (10) subpoenas without charge or further order.

6. The Independent Children’s Lawyer when appointed is granted liberty to apply to re-list this matter on seven (7) days’ notice.

7. The Application is otherwise adjourned to 10 September 2014 for Final Hearing.     

IT IS NOTED that publication of this judgment under the pseudonym Humphrey & Humphrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6843 of 2012

MR HUMPHREY

Applicant

And

MS HUMPHREY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of two children, a girl aged 15 and a boy who is nearly 14, to discharge interim parenting orders that were made after an interim hearing in March last year. He seeks an order that both children should live with him.

2. The Mother has filed a Response to the Father’s Application in which she, too, seeks to discharge the earlier orders, but the orders that she seeks are very much at odds with the orders sought by the Father.

3. However, there are reasons why the applications by the parents to discharge the earlier orders are premature, noting that the substantive parenting proceedings are listed for final hearing in early September. There is also, in my view, a shortage of hard evidence to support either party’s case.

Background

1. The parties were married [in] 1992 and separated in September 2008.

2. There are two children of the marriage.

3. The parties’ daughter [X] was born [in] 1998. She is now 15 years and 8 months old. The parties’ son [Y] was born [in] 2000. He is just over a month short of his 14^th birthday.

4. The relationship between the parties has been acrimonious since separation and has remained so. 

History of Litigation

1. The Father filed an Application for parenting orders on 15^th November 2012.

2. The parties attended a Child Dispute Conference with a Family Consultant on 17^th December 2012. No agreement was reached.

3. On 19^th December 2012 the parties, who were both legally represented at the time, entered into two sets of interim consent parenting orders, which between provided that:

   a)the parties would have equal shared parental responsibility for the children;

   b)the child [Y] would spend time with the Father during the Christmas/January school holidays and would live with each parent on a week about basis during the school term; and

   c)the child [X] would live with the Mother and spend specified times with her father during the Christmas/January school holidays and then two consecutive Sundays in February with her father.

4. The parties attended a Child Inclusive Child Dispute Conference on 14^th February 2013. The parties were unable to reach agreement, especially in respect of any ongoing orders in respect of [X].

5. An interim hearing was held on 4^th March 2013 to deal with arrangements for [X]. Judgment was delivered on 6^th March.[1] The Orders until further order made on that occasion were, in summary:

   a)The parties have equal shared parental responsibility for her;

   b)[X] is to live with her mother;

   c)The child is to spend time with the Father:

   i)on Wednesdays after school until 6:30pm;

   ii)on alternate weekends from after school on Friday until 5:00pm on Sunday;

   iii)on special days such as birthdays, Father’s Day, Christmas Day and Boxing Day; and

   iv)for the first half of the Autumn, Winter and Spring school holidays.

   [1] Humphrey & Humphrey [2013] FMCAfam 199

6. On that same day, an order was made for the preparation of a Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth). The parties were advised by letter dated 18 June 2013 that they were required to attend interviews with a Family Consultant on 22^nd July 2013. The two children were to attend the interviews.

7. The proceedings were listed for mention on 2^nd July 2013. The Mother’s solicitor attended Court but there was no appearance by or on behalf of the Father.

8. On 3^rd July the Father’s solicitor filed by electronic means a Notice of Intention to Withdraw as Lawyer. That same day, the Father’s solicitor affirmed an affidavit in which she sought to explain her absence from Court the day before because she had received no instructions from her client at all and had overlooked filing the appropriate Notice prior to the mention on 2^nd July.

9. On 18^th July 2013 the Mother’s solicitor filed a Notice of withdrawal as Lawyer.

10. Neither party attended the interviews with the Family Consultant on 22^nd July. Consequently, there is no Family Report available.

11. The Mother attended Court on 2^nd September 2013 and was granted leave to file an Amended Response or an Application in a Case, noting that there was no appearance by or on behalf of the Father.

12. On 24^th September 2013 the Mother filed a Response and an affidavit seeking a discharge of the Interim Orders of 6^th March.

13. On 8^th October the Mother was granted leave to file and serve a further affidavit and an Amended Response, which she did on 29^th October 2013. The Response sought not only parenting orders but property orders. The matter was listed for an undefended hearing on 13^th November 2013. However, on 12^th November the Father sent an email to the Court indicating his intention to defend the proceedings and claiming that the Mother had not served any of her documents on him. He attended Court unrepresented on 13^th November.

14. The Father was ordered to file and serve an Amended Application and an affidavit within 14 days.

15. The Father, now represented, filed a Reply on 27^th November 2013, in which he sought not only parenting orders but orders in respect of Child Support and spousal maintenance.

16. On 4^th December the Mother filed an Amended Response seeking parenting orders and orders for spousal maintenance and child maintenance as well as property orders.

17. The matter came before the Court on 9^th December 2013, at which time the parties were again directed to attend a Family Report and the proceedings were listed for final hearing on 10^th and 11^th September 2014. The Father’s application for an assessment of child support and the Mother’s application for child maintenance were both dismissed for want of jurisdiction.

18. On 10^th December 2013 the Father filed an Application in a Case seeking interim parenting orders as a matter of urgency.

19. The Mother filed a Response to an Application in a Case seeking different parenting orders.

Orders Sought

1. In summary, the Father seeks orders “as a matter of urgency” and time should be abridged so that there can be an early hearing date for interim orders providing that:

   a)both children should live with him;

   b)the parties should have equal shared parental responsibility for the children;

   c)the Mother’s time with the children should be conditional on her complying with an order under sections 65D, 67ZC, 68B or 114 of the Family Law Act that she should attend upon a psychiatrist and comply with any treatment and recommendation by the psychiatrist and that the time should be supervised by the children’s maternal grandparents; and

   d)other injunctive orders.

2. For her part, the Mother seeks orders providing that:

   a)both children should live with her;

   b)the Father should not get out of his vehicle or approach the Mother’s house at changeover; and

   c)other injunctive orders.

3. The Mother also seeks orders relating to her property application which are not appropriate to be considered in an interim parenting hearing. I have directed that the parties should attend a Conciliation Conference with a Registrar on 26^th May.

Submissions and Evidence

1. The Father relies on his affidavit affirmed on 9^th November 2013 but not filed until 10^th December, which is curious considering that the affidavit is in support of an Application for orders “as a matter of urgency”.

2. In his affidavit the Father deposes that his time with his daughter [X] has been greatly reduced by the Mother so that he only sees her on Wednesday nights.[2] He has not seen [X] on weekends since 15^th March 2013.[3] He has not seen [X] at all since October 2013.[4]

   [2] Affidavit of Mr Humphrey 9.11.2013 at paragraph [13]

   [3] Ibid at [16]

   [4] Ibid at [18]

3. The Father states that the Mother has displayed bizarre behaviour, including telephoning him 120 times on 25^th January 2013[5] and sending him large numbers of emails. The Father also deposed that the Mother disappeared for a period of three weeks from 3^rd June 2013, during which time [X] came and stayed with him.[6]

   [5] Ibid at [14]

   [6] Ibid at [45]-[50]

4. The Father also claims that the Mother has engaged in family violence against him, citing five applications for Apprehended Violence Orders since 2010. The most recent, he deposes, was made on 20^th November 2013.[7] His solicitor has provided a File Note showing two applications for Apprehended Violence Orders listed for hearing at the [omitted] Local Court in Sydney, on 11^th March 2014 (against the Mother) and 14^th April 2014 (against him).

   [7] Ibid at [23]-[29]

5. No copy of any current Apprehended Violence Order has been tendered. Section 60CF of the Family Law Act provides at subsection (1):

   If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.

6. The most effective way of informing the Court of a family violence order is to tender a copy of the Order issued by the Local Court. That way, there can be no doubt about whether the order applies and the terms of the order.

7. The Father does not provide an explanation as to why, if a final Apprehended Violence order was made as recently as 20^th November 2013, there should be any need for a further order to be sought in March 2014.

8. The File Note also bears this notation:

   Related assault charge against Ms Humphrey – dismissed 14/01/14 under the Mental Health (Forensic Provisions) Act 1900[8]s.32(3)(a).

   [8] sic

9. No documentation has been provided from the Local Court as to the nature of the finding made by the Court on 14^th January 2014. Subsection 32(3) of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides at paragraph (a):

   (3)The Magistrate may make an order dismissing the charge and discharging the defendant:

   (a)into the care of a responsible person, unconditionally or subject to conditions, or…

10. The Mother claimed, in evidence from the Bar table, that she was suffering from depression at the time. There is no other evidence as to the nature of the finding made by the Local Court.

11. The Father also states in his affidavit that the Mother made suicide attempts:

    a)on 7^th October 2009;

    b)on 22^nd February 2010; and

    c)on 4^th July 2010.[9]  

    [9] Affidavit of Mr Humphrey 9.11.2013 at [31]-[41]

12. The Father also claims in his affidavit that the child [X] was suspended from school for a week commencing on 14^th June 2013 when it was discovered she had smoked marijuana on the weekend of 8^th June 2013.[10]

    [10] Ibid at [51]

13. He also claims that the child has had poor school attendance since living with her mother and suffers from “anxiety attacks, depression and insomnia”.[11]

    [11] Ibid at [53]-[54]

14. The Mother, in her affidavit, deposed that [X] is currently out of Australia on a Student Exchange program, to which the Father consented. She did not provide any details of the dates of this program, except that she stated that [X] agreed to spend “a few hours” with him on 14^th February 2014, before she left.[12]

    [12] Affidavit of Mr Humphrey 26 February 2014 at [3] and [12]

15. From the submissions made in Court, it appears that [X] will be absent from Australia in [country omitted] until early in July of this year.

16. The Mother in her affidavit denies that she has prevented [X] from seeing her father, stating that it has been the child’s choice not to do so. The Mother’s affidavit contains detailed and lengthy criticisms of the Father’s failure to provide financial support for the children.

17. There is no evidence of a child support assessment or a child support agreement.

18. The Mother denies that she has attempted suicide and disputes the Father’s claims in relation to Apprehended Violence Orders.

19. The Father’s solicitor has referred the Court to the decisions of L & T[13] and Mortone & Mortone[14].

    [13] [1999] FamCA 1699; (1999) 25 Fam LR 560; FLC 92-875

    [14] (2011) FamCA 309

Parenting Applications

1. The objects of Part VII of the Family Law Act are set out in s.60B(1) and the principles underlying those objects are set out in s.60B(2).

2. Section 60CA requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child (or children) as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests.

3. Section 61DA requires the Court to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and may be rebutted by evidence that it would not be in the child’s best interests to apply the presumption.

4. In an interim hearing such as this, where the Court is making an interim order, subsection 61DA(3) provides that the presumption will apply unless the Court considers that it would not be appropriate. In this case, each parent seeks an order for equal shared parental responsibility, subject to some conditions.

5. Section 65DAA requires the Court to consider whether, in a case where equal shared parental responsibility has been ordered, it would be both in the child’s best interests and reasonably practicable for the child concerned to spend equal time with each parent or, in the alternative, to spend substantial and significant time with each parent.

Conclusions

1. In my view, when this Application is viewed in the context of the proceedings as a whole, it is misconceived and poorly-timed. A similar criticism can be applied to the Response. Each party seeks a significant change to the present interim parenting orders, involving a change of residence of both children, by relying on assertions rather than producing any hard evidence.

2. There were interim parenting orders made on 6^th March 2013 relating to [X] after an interim hearing, brought about by the parties’ inability to agree on orders for her when they had negotiated two sets of consent orders on 19^th December 2012.

3. There is a final hearing scheduled to commence on 10^th September this year, at which time the parties’ evidence can be tested by cross-examination. There will be a Family Report.

4. There would have been a Family Report available in the latter half of last year except that neither party attended the interviews with the Family Consultant on 22^nd July 2014. No explanation has been given for the parties’ failure to attend the interviews.

5. The Father, with respect, appears not to understand the concept of an interim hearing. He is seeking a significant change to the parenting arrangements for each child prior to the final hearing in September without, apparently, providing any evidence to support such a serious step.

6. It is of no value to refer to incidents that have occurred in 2010 or 2011, prior to the interim hearing in March 2013. If it is the case that the Mother has failed to comply with the orders made on 6^th March, why, one might ask, has no attempt been made to enforce these orders by means of Contravention proceedings?

7. If the Father claims that the Application needs to be decided urgently in the light of the Mother’s alleged disappearance for three weeks in June and the reports of his daughter’s suspension from school that same month, why did he wait until 9^th November, five months later, to affirm an affidavit setting out his concerns and then delay filing the Application and affidavit until 10^th December, a further month?

8. If those events in June 2013 were the cause of such concern for the Father, as one would expect, why did he not attend the interview with the Family Consultant on 22^nd July and raise those concerns at that time?

9. It is well established that:

   the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is ‘significantly curtailed’. Where the court cannot make further findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[15]

   [15] Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 at [68]

10. There are disputed allegations of family violence which are concerning, but are unsupported by any evidence of findings by the Local Court or material produced on subpoena from the Police. With respect, it is of little evidentiary value to rely on Apprehended Violence proceedings which are not listed to be heard until later this month or in the middle of next month.

11. If it is the case that the Mother suffers from some form of mental illness or mental disorder which would affect her parenting capacity, the bald recitation of a finding by a Court on 14^th January this year of the dismissal of an assault charge against the mother under s.32(3)(a) of the Mental Health (Forensic Provisions) Act is of little assistance without some evidence of what the Magistrate found under s.32(1).

12. Subsection 32(1) provides:

    If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

    (a)that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

    (i)     developmentally disabled; or

    (ii)    suffering from mental illness; or

    (iii)   suffering from a mental condition for which treatment is available in a mental health facility,

    but is not a mentally ill person, and

    (b)that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

    the Magistrate may take the action set out in subsection (2) or (3).

1. This material, which would appear to be vital to the Applicant’s claim that the children should live with him on a full-time basis and that the mother’s time with the children should be:

   a)supervised by her parents (who are not on affidavit); and

   b)subject to her undergoing psychiatric assessment and treatment;

   is lacking.

2. Each party’s Applications fail to take into account that the child [X], who is nearly 16 years old, is out of the country and will not return until July. How would it be proposed that her views be sought and considered, as is required by s.60CC(3)(a)?

3. Again, if, as the Father claims, the child [X] is exhibiting anxiety attacks, depression and insomnia, where is the evidence to support those contentions? The Father claimed in his affidavit of 9^th November 2013 that [X] told him that she had had panic attacks on 21^st and 23^rd October but he had not seen her since.

4. In my view there is insufficient evidence to support the interim orders sought by the Father in his Application in a Case or by the Mother in her Response to an Application in a Case. I propose to dismiss both.

Appointment of an Independent Children’s Lawyer

1. Although the manner in which this case has been conducted to date is less than satisfactory, there are serious concerns relating to the children that need to be investigated. I consider that this case calls for the children’s interests to be independently represented by a lawyer under the provisions of s.68L(2) of the Family Law Act.

2. There are several features which appear to meet the guidelines for separate representation as set out by the Full Court of the Family Court in Re K[16]. The matters which I consider to be relevant are:

   a)the apparently intractable conflict between the parents;

   b)the allegations of family violence; and

   c)the allegations of psychiatric or psychological illness or personality disorder made against the mother.[17]

   [16] (1994) 17 Fam LR 537; FLC 92-461

   [17] (1994) 17 Fam LR 555-557; FLC 92-461 at 80,774-80775

3. In my view, an Independent Children’s Lawyer will be of great assistance in bringing before the Court at the final hearing in September the necessary information relating to the best interests of these two children.    

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 12 March 2013