Jardine and Sackville (No 2) - [2019] FamCA 1036

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE (NO. 2)

[2019] FamCA 1036

FAMILY LAW – CHILDREN – Interim proceedings – Where interim orders were consensually made in March 2019 for the mother to have sole parental responsibility for the children and for them to live with her – Where the father withdrew his application for the children to communicate and spend time with him and his application was then dismissed – Where the father now seeks orders requiring the children to communicate and spend time with him, the amendment of an existing apprehended violence order made by a State court, and for the mother and maternal grandparents to submit to psychological or psychiatric assessment – Where the mother and the Independent Children’s Lawyer seek dismissal of the father’s application – Where the father contends the mother is alienating the children from him – Where the mother contends the father is violent – Where factual findings in respect of those issues cannot be made until the evidence is tested at trial – Where the trial is listed in January 2020 – Where the presumption of equal shared parental responsibility does not apply – Where the father’s desire to spend time and communicate with the children is outweighed by s 60CC considerations – Where the Court does not have power to annul or amend the order of a State court – Where the Court does not have power to compel the maternal grandparents to submit to psychological or psychiatric assessment – Where there is no evidentiary basis to compel the mother to submit to psychological or psychiatric assessment – Ordered that the father’s application be dismissed

Family Law Act 1975 (Cth), ss 60CC, 61DA, 65DAC

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

8 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Ms A. Hebblewhite as agent

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms K. Wooi

Orders

IT IS ORDERED THAT

The Application in a Case filed on 18 September 2019 is dismissed.
The respondent mother’s application for costs arising out of today’s interim hearing is reserved to the final trial on 28 January 2020.

BY CONSENT, IT IS FURTHER ORDERED THAT

Leave is granted to the Independent Children’s Lawyer to issue a subpoena to the father’s psychologist, Ms B.

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 Jardine & Sackville (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1949 of 2018

Mr Jardine

Applicant

And

Ms Sackville

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Before the court for determination is an interim dispute over parenting orders for the two daughters of the applicant father and respondent mother. The girls are aged seven and six years respectively. The parties separated in April 2018 and the children have not seen or spoken with the father since then. The father commenced these proceedings in June 2018 and the dispute is now listed for final trial before me in January 2020.
By way of brief history, in August 2018, the father sought interim parenting orders enabling the children to communicate and spend time with him. That interim dispute was resolved before Cleary J in March 2019. Her Honour made orders with the parties’ consent for the children to live with the mother and for the mother to have sole parental responsibility for them. The father withdrew his application for orders enabling the children to spend time and communicate with him. He was legally represented at the time, so the decision to withdraw and invite the dismissal of his interim application was not merely an honest mistake by an unrepresented litigant.
A Family Consultant prepared a Family Report in July 2019. It only need be observed at this point that it strongly favours the ultimate outcome proposed by both the mother and Independent Children's Lawyer. The father will be able to test the Family Consultant’s controversial evidence at the final trial.
The mother wants orders for her to have sole parental responsibility for the children, for the children to live with her, and for the imposition of restrictive injunctions precluding any form of the children’s interaction with the father and other nominated paternal family members.
The last application filed by the father in August 2018 proposed orders for the children to remain living with the mother, for the children to spend time and communicate with him, and for the parties to share parental responsibility for the children.
On 9 August 2019, procedural orders were made listing the trial before me in January 2020. It is fixed for five days.
On 18 September 2019 the father filed an Application in a Case, which is the interim application listed before me for determination today in a duty list. In effect, he seeks:
(a)Amendment of an existing apprehended violence order made by a State court against him for the protection of the mother and the children;
(b)Orders requiring the children to spend time with him on alternate weekends during the remaining school term, and for one half of the Christmas school holidays; and
(c)The “physiological” (which I interpret to instead mean psychological or psychiatric) assessment of the mother and both maternal grandparents.
In support of that application the father relied upon his affidavit filed on 17 September 2019 and two documents verifying his completion of parenting courses (Exhibit F1).
The mother and the Independent Children's Lawyer resist all the husband’s proposals and seek dismissal of his application. They relied upon only the Family Report and a copy of the apprehended violence order made against the father on 10 July 2018 (Exhibit ICL1).
Underlying this dispute are two largely irreconcilable propositions: first, the father contends the mother is alienating the children from him and intentionally destroying their important relationships with him, which the mother denies; and secondly, the mother contends the father is a violent man of whom she is very frightened and that his dealings with her and other members of the public display an attitude and demeanour which is inconsistent with competent parenting because it puts the children’s emotional growth and health at serious risk. The father denies that.
As I attempted to explain to the father, seemingly unsuccessfully, it is impossible for me to make factual findings about those two completely different contentions until the evidence is comprehensively tested at trial. In the meantime, all the Court can do is act on uncontroversial evidence or inferences which fairly arise in order to protect the children’s best interests. It must be remembered that their interests remain the paramount consideration.
The father’s persistence in trying to persuade the Court to accept the validity of his point of view is misconceived. As he correctly said in submissions, “everyone can make allegations”. His allegations of the mother’s alienation are no more reliable than her allegations of his violent tendencies.
The uncontroversial evidence upon which the Court can presently act is as follows:
(a)The children have not seen or spoken to the father for some 18 months;
(b)The parties apparently live several hours driving time apart;
(c)The case is listed for final trial in January 2020 when the evidence will be properly tested;
(d)The father withdrew his last application for the children to communicate and spend time with him in March 2019;
(e)The father gave no explanation for why he waited for some six months to bring another application of that sort;
(f)The father gave no explanation for why resolution of the dispute ought not wait a short while longer until the trial in January 2020, other than that he is desperate to see the children;
(g)The father was convicted of some form of violent offence committed upon the mother by a State court and so his contention that there was “not one single police complaint of family violence” was false; and
(h)There is an existing apprehended violence order made by a State court in force for the protection of the mother and children from the father, which was made on 10 July 2018 for a period of two years. Conditions of that order include that the father not approach the mother or children or contact them in any way unless permitted by an order made under Part VII of the Family Law Act 1975 (Cth) (“the Act”) by this Court and, further, that he not go within 500 metres of the mother’s residence or any place where she works.
It is possible for this Court to override the operation of the apprehended violence order by orders made under Part VII of the Act, if there are good reasons to do so, but there is no power to annul or amend the State court’s order, as the father seemed to believe. That aspect of his application must be dismissed.
Turning to the proposed parenting orders, s 61DA(1) of the Act imports a presumption that parents of children should have equal shared parental responsibility for the children. In this case, the uncontested evidence proves the father assaulted the mother at some recent time in the past and, as a consequence, s 61DA(2) of the Act provides that the presumption of equal shared parental responsibility does not apply.
The parties are so conflicted it seems presently impossible for them to share parental responsibility for the children in the manner the law requires (s 65DAC). Logically, parental responsibility for the children should rest with the residential parent, just as the parties sensibly agreed before Cleary J in March 2019. For present purposes, there was no contest that the children should continue to live with the mother and so she should also retain sole parental responsibility for them, as was agreed some six months ago.
No interim orders should now be impulsively made for the children to communicate or spend time with the father. That question must await trial, which is little more than two months away. The reasons for that conclusion are as follows:
(a)The children’s relationships with the father will not be any more compromised by an extra two to three months wait (ss 60CC(2)(a) and sections 60CC(3)(b));
(b)Compelling the children to suddenly spend substantial time with the father after a hiatus of 18 months will likely cause some emotional disturbance to them, particularly if they are attuned to the mother’s alarm about it (s 60CC(3)(d));
(c)The parties live a fair way apart and there was no evidence at all about how the practical difficulty and expense of implementing the orders proposed by the father could be overcome (s 60CC(3)(e));
(d)There remains a live dispute over the father’s capacity to adequately provide for the children’s emotional needs (s 60CC(3)(f));
(e)There remains a live dispute over the father’s propensity to expose the children to family violence, or indeed, violence generally and the risk they may suffer psychological harm as a consequence (s 60CC(2)(b));
(f)The father has committed family violence upon the mother (s 60CC(3)(j));
(g)There is an existing family violence order protecting the mother and the children from the father (s 60CC(3)(k)); and
(h)The court is exhorted to make parenting orders which are consistent with existing family violence orders (s 60CG(1)(a)).
The father’s understandable desire to see and speak with the children as soon as possible is outweighed by those other statutory considerations.
There is no power to compel the maternal grandparents’ attendance upon a psychologist or psychiatrist for assessment. They are not parties to the proceedings. Nor is there any proper evidentiary basis for an order compelling the mother to submit to psychological or psychiatric evaluation. Aside from the father’s bare belief that the mother is alienating the children, there is no evidence at all as to who would perform the mother’s assessment, what instructions would be given to the doctor, when the report would be ready, or who would pay for the doctor’s fees to prepare the report and attend court as a witness.
For those reasons, the father’s application will be dismissed.
I therefore make the following orders.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 November 2019.

Associate:

Date: 30 January 2020