JEFFS & MARSHALL (No.2)
[2018] FCCA 3713
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFS & MARSHALL (No.2) | [2018] FCCA 3713 |
| Catchwords: FAMILY LAW – Part-heard trial – oral application for interim parenting orders pending resumption of trial. |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS JEFFS |
| Respondent: | MR MARSHALL |
| File Number: | MLC 7616 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Teicher |
| Solicitors for the Applicant: | Cathleen Corridon and Associates |
| Counsel for the Respondent: | Ms Healey |
| Solicitors for the Respondent: | CBD Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Devine |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
The father spend time with the children [X] born 2009 and [Y] born 2013 (“the children”) from 10:00am on 11 January 2019 to 4:00pm on 14 January 2019.
That the time pursuant to order 1 be supervised by MS A upon her undertaking to properly supervise all time between the father and the children and such undertaking to be filed with the Court seven (7) days prior to the time taking place.
Changeover at the commencement of time to take place at Dr B’s office situate at [Suburb A], with the mother or her nominee to deliver the children to Dr B’s office by 10:00am on 11 January 2019.
The father and Ms A shall return the children to the maternal grandmother’s home in [Town 1], or at the McDonalds in [Town 1], such location to be nominated by the mother in writing by no later than 18 December 2018.
Notation:
The father will be responsible for Dr B’s fees.
IT IS NOTED that publication of this judgment under the pseudonym Jeffs & Marshall (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7616 of 2016
| MS JEFFS |
Applicant
And
| MR MARSHALL |
Respondent
REASONS FOR JUDGMENT
This is a complex parenting matter. The trial has taken seven hearing days thus far and is listed for another day of hearing on 17 January 2019. The length of the trial is an indication of the complexity considering that it is has proceeded on an undefended basis with respect to the mother. Due to the nature of the issues I have to consider, I have heard extensive oral evidence from the family consultant, the father, his sister, the father’s psychologist, Dr C, two police officers from SOCIT, a social worker from Department of Health and Human Services (“DHHS”) and a social worker from Family and Community Services (“FACS”).
Given the time constraints, I am not able to refer to the evidence given at trial in any detail. The Full Court in Goode & Goode [2006] FamCA 1346 set out the legislative pathway the Court should consider when making interim parenting decisions.
The hearing will resume on 17 January 2019 when the family consultant will be recalled and the parties will make final submissions. This was always anticipated so that the evidence that has been adduced by other witnesses that may or may not influence her recommendations can be put to her.
At the end of the hearing on 27 November 2018 the father’s Counsel made an oral application for the father to spend interim time with the children during the adjourned period. The father sought that the mother bring the children to Victoria so that he could spent three nights and four days with the children. I raised the concern about the children transitioning into the father’s care without some sort of professional assistance given difficulties the father has experienced in spending time with the children, even on a supervised basis at times. The Independent Children’s Lawyer (“ICL”) supports the father’s application.
The mother was not on notice of that application and the mother’s Counsel was not able to get instructions as the mother was on a plane. In those circumstances I adjourned the interim application to today.
Unfortunately when the matter came before me to determine the interim application, Counsel for the father handed up a greatly expanded proposal of which the mother and the ICL were not on notice. This extended the court time required for this matter which had been listed in a very busy duty list. It included orders that the Court cannot make, including seeking orders to be made against a non-party and an order seeking that the mother and children return to Victoria pending the final hearing. He also sought two periods of time including in the lead up to Christmas.
The mother proposed that the father travel to Town 2 at his expense and spend a few hours a day for three days supervised on the Friday, Saturday and Sunday in the first week of January 2019. She invites the father’s sister to attend as well given the father’s proposal that his sister supervise his time initially. The mother further proposes that if the time goes well, the father speak with the children once a week. The mother says she will bear the contact centre fees. The father will have to pay his travel and accommodation costs.
The mother also sought to rely on an affidavit that was not even filed and had only just been given to the other parties. Given the fact that I had adjourned this application for a period of over a week, it is completely unacceptable that the mother sought to introduce late evidence. Apparently the affidavit annexes medical certificates.
Counsel for the father submitted that the Court has heard the evidence about the father’s mental health and about the allegations of sexual abuse which were unsubstantiated. These were the risk issues that had been identified with respect to the father. There are also many risk issues with respect to the mother.
The father has engaged Dr B to assist with the transition of the children into his care. He is an experienced psychologist in this area. The father is proposing that he pay for his services. Dr B is prepared to write a report if required. The father proposes that his sister supervise his time. She was cross-examined and gave evidence at the trial that she is willing to stay at her brother’s home and supervise his time with the children.
Dr B is available to meet with the father and children on 11 January 2019 to facilitate a changeover. The father’s Counsel indicated that his preference was for someone other than the mother to bring the children. It was advised at the hearing on the last occasion that the maternal grandmother has returned to live in Town 1, Victoria. The mother was staying at her home when the hearing resumed on the last occasion where she apparently had an accident and was unable to attend Court.
The father’s Counsel submitted that the mother’s proposal is just another road block for the father and involves considerable expense for the father for him to spend limited time in an artificial environment.
The mother’s Counsel opposed the father’s application. She argued that by acceding to the father’s proposal I would be presupposing the final outcome of the trial and it would be irregular. Whilst the proposal was not a change of residence, it would be an enormous change for the children and would be a shock for them without the assistance of therapy. The mother’s Counsel then submitted that the father would have to pay for the mother and children’s airfares to Victoria as the mother will have hotel accommodation for the trial.
The ICL’s Counsel observed that children’s lack of engagement with therapy is entirely the mother’s responsibility as she did not comply with orders to engage in reunification therapy. The mother has been in breach of orders for more than ten months.
The ICL’s Counsel further submitted that it was to the father’s credit that he has arranged for Dr B’s assistance so that the children and father have professional support. The father has been proactive in this regard.
Counsel for the ICL submitted that there is no reason why the mother cannot stay in [Town 1] with her mother rather than a hotel, as she has done recently. The ICL supports one period of time between the father and children before the trial resumes.
She further submitted that it is not necessary for the children to be familiar with the paternal aunt as the Court has heard all the evidence about risk with respect to the father and even if there are concerns about risk, this is addressed by the supervision of the paternal aunt.
In considering the Counsel for the mother’s submissions with respect to prejudging the final outcome, it is important to acknowledge that the mother’s case is not that there should be no time. Her case outline prepared for trial proposed professionally supervised time. In fact there were interim consent orders made on 26 September 2018 which provided for the father to travel to New South Wales in order to have two supervised visits with the girls. The mother proposes supervised time to take place before the resumption of the trial.
[X] refused to attend both visits. [Y] attended the first visit. At trial the father relied on the affidavit prepared by the supervisor, Ms D, but who was not required for cross-examination. In her report she states that Mr E did not appear encouraging. She described the visit between [Y] and her father positively. She observed the father to be mindful of [Y]’s safety around the equipment. Whilst [Y] acknowledged that she enjoyed the first visit, she refused to attend the second visit. [Y] appeared to be influenced by [X].
Neither the father nor the ICL support the mother’s proposal for the father to travel to [Town 2] to have supervised time. That proposal does not involve any therapeutic intervention and assistance with transition, such as that which Dr B can provide, which is more extensive than simply a handover service.
The benefits of the father’s proposal is that it gives the girls and the father an opportunity to spend time together in a more natural environment and over a longer period. The success or otherwise of that visit will be a relevant consideration at the continuation of the trial.
The ICL pointed out that the proposal is consistent with one of the three alternatives that the ICL proposed in her case outline for the children, that being specifically that the girls spend holiday time with the father. One of the issues I will have to consider when evaluating all the evidence is the parties’ capacity to facilitate a relationship with the other parent. I must also take into account that I have heard extensive evidence with respect to the allegations of risk against the father and concerns about his mental health. The risk concerns with respect to the mother have not been tested due to the mother’s lack of candour and compliance with court orders.
The father has demonstrated considerable commitment to resuming his relationship with his children. He has expended considerable funds and has travelled great distances in order to spend very limited supervised time with the children both in the Children’s Court when proceedings were on foot and during these proceedings.
I am satisfied that it is in the children’s best interests for them to spend time with the father at his home supervised by his sister. I have had the benefit of seeing both the father and his sister cross-examined during the trial. Whilst this is likely to be emotionally challenging and difficult for the adults and children, it does not place them at an unacceptable risk.
In essence, the mother’s proposal has already been tried and has not worked. The advantage of the father’s proposal is the involvement of Dr B, who can provide therapeutic assistance.
The father proposes to return the children to the mother at the maternal grandmother’s home at Town 1. In order to do that the mother will need to provide her address. If the mother or maternal grandmother is unwilling to do this then he proposes the handover take place at McDonald’s in [Town 1].
The mother should be mindful that this is an opportunity for her to show a willingness to facilitate the father’s relationship with the children and comply with court orders. Both are relevant considerations for the Court at the end of the trial.
I propose to order that the father spend time with children from 11 January 2019 to 14 January 2019. The trial resumes on 17 January. Assuming that the mother intends to travel for the resumption of trial, the travel is not too burdensome upon the mother. Alternatively, the mother could arrange for her partner or mother to bring the children. Whilst I cannot make an order binding on them as they are not parties, they were to be witnesses in the mother’s case and have at times attended the trial.
Whilst it is a financial cost to the mother, this can be ameliorated by staying with her mother in [Town 1] and it is a matter for the mother as to whether she travels by car or plane. The mother will have to pay for the children’s travel. The father will be paying Dr B’s costs. He has also incurred significant costs in travelling to Sydney for the two supervised visits and for Phoenix Rising’s costs. Both parties receive Centrelink benefits.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 13 December 2018