Kerr and Kennett

[2018] FamCA 384

FAMILY COURT OF AUSTRALIA

KERR & KENNETT [2018] FamCA 384

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the mother seeks to suspend the children’s time with their father under the current orders – Where the circumstances of the case give rise to a number of concerning matters pertaining to the welfare of the children – Where it is not in the best interests of the children to completely suspend the children’s time with their father – Where the father’s time with the children is to be subject to certain conditions.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Kerr

RESPONDENT: Mr Kennett

FILE NUMBER: MLC 6702 of 2012

DATE DELIVERED: 31 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2018

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Ms Nasser (by telephone)

Ressan Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the time that the children, X born … 2009 and Y born … 2010, (“the children”) spend with their father in Victoria pursuant to the existing parenting orders of 27 October 2017, shall be conditional upon all of the following:

   (i)The father’s mother spending each night of such time in the same residence as the father and the children, be it her home or the father’s home, and the father and his mother each confirming in writing to the mother before the first such visit their agreement with this condition until the condition is removed by further order;

   (ii)The father not taking the children to work with him and not taking them unrestrained in his vehicle at any time;

   (iii)The father not leaving the children or either of them on their own at any time;

   (iv)The father not leaving the children to be cared for by any person other than their paternal grandmother if he is unable to care for them for any reason;

   (v)The father not subjecting the children to any physical discipline;

   (vi)The father not questioning the children about things that the children have told their mother;

   (vii)The father not abusing or assaulting the children or any other person in the presence of the children.

2. That during each period that the children are spending time with the father in Victoria the father shall cause the children to telephone and speak with their mother each day.

3. That neither the mother nor the father shall discuss these Court proceedings with the children or discuss any inappropriate adult issues with the children.

4. That pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”), the interests of the children be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children’s interests.

5. That forthwith upon appointment by the said Legal Aid Queensland or otherwise the Independent Children’s Lawyer shall file a Notice of Address for Service.

6. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer be granted leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

7. That within five days of notification of such appointment the mother and the father shall each provide to the Independent Children’s Lawyer copies of all documents filed by that party in these proceedings since their commencement on 22 March 2018 and should the Independent Children’s Lawyer not be the same person as the Independent Children’s Lawyer who was a party to the previous proceedings between the parents in this matter, he or she shall be entitled to obtain copies of all the documents filed by the parties in those earlier proceedings and any other documents that made up the file of that previous Independent Children’s Lawyer.

8. That the further hearing of all of the interim applications of each of the parties, except for the mother’s application pursuant to s 90SN of the Act, is adjourned to 10.00 am on Thursday, 26 July 2018 before his Honour Justice Forrest.

9. That the personal appearance of the father and any legal representative who appears for him shall be required in Court on that day, Thursday, 26 July 2018.

10. That on or before Friday, 6 July 2018 each of the mother and the father shall file and serve one affidavit of their own evidence in chief upon which he or she intends to rely at the hearing on 26 July 2018, and no other affidavit of evidence in chief of either of them shall be relied upon at the hearing without the leave of the Court first obtained.

11. That should any of the parties seek to rely upon the affidavit evidence of any other person, then only one affidavit of each such witness shall be filed and served on or before Friday, 6 July 2018 and no other affidavit evidence shall be relied upon by either party at the hearing without the leave of the Court first obtained.

12. That on or before Friday, 6 July 2018 each of the mother and the father shall file and serve a Financial Statement setting out their current financial circumstances.

13. That on or before Friday, 20 July 2018 each of the parties shall give written notice to the Court and the other parties of an intention to cross-examine the other party at the hearing on 26 July 2018.

14. That should the mother not inform the Court and the father in writing prior to the hearing on 26 July 2018 that she discontinues that part of her interim application in which she asks for the Court to “refer the matter of suspected tax evasion to the Attorney-Generals [sic] department” then she shall be required to make submissions at the hearing addressing, amongst the other aspects of her application, as to why that part of her interim application should not be struck out.

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 Kerr & Kennett 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 BRISBANE

FILE NUMBER: MLC 6702 of 2012

Ms Kerr

Applicant

And

Mr Kennett

Respondent

REASONS FOR JUDGMENT

1. On 27 October 2017, orders were made in this parenting dispute with the consent of the parties. Those orders provided for the mother to have sole parental responsibility for the two subject children who are now 8 and 7 years old. They provided for the children to live with the mother (she was living in B Town at the time and the father was living in Victoria not far from C Town). They provided for the children to spend time with the father for one weekend every calendar month from Saturday morning until Sunday afternoon either in B Town or in Victoria at his election. They also provided for the children to spend half of each of their school holidays with the father.

2. In consenting to those orders, the mother, who was unrepresented, compromised her application to be able to relocate with the children to the UK, where she comes from. She thereby agreed to continue living in Australia with the children and she remained in B Town with them.

3. On 22 March, 2018, less than six months after the consent orders were made finalising the parenting dispute, the mother filed a fresh Initiating Application in which she sought to discharge those very same consent orders. She sought immediate suspension of the orders providing for the children to spend time with the father and an order that the father attend upon a psychiatrist for the treatment of anger management issues.

4. Her affidavit evidence filed in support referred to events that she alleged had happened in the Summer school holidays when the children were spending time with the father as the basis for her fresh application. There were a number of matters of relative significance raised by her. They were:

   (i)That the father and his live-in partner (who provided a lot of the care for the children when they spent time in the father’s home and who the children were said to have liked) had allegedly separated after an incident of serious family violence witnessed by the children, with that woman leaving the home;

   (ii)That the father had some time thereafter left one of the children in his mother’s care and one night had gone from his semi-rural home and left the 8 year old boy home alone during which time the boy contacted the mother and told her he was scared, resulting in the mother calling the Victorian Police who attended and took the boy and delivered him to the paternal grandmother’s home;

   (iii)That the father, was taking the children to work with him, sometimes from 3:00 am, and allowing them to be unrestrained in his vehicle; 

   (iv)That the father had been physically rough and aggressive with the children.

5. As the children were due to fly to Victoria to spend holiday time again with the father from Friday, 30 March, I listed the matter for an urgent hearing on 29 March 2018. That day, the mother appeared unrepresented in the Court in Brisbane and the father appeared, unrepresented, by telephone from Victoria. Unsurprisingly, given the short listing of the matter, the father had filed no material at that time. However, he spoke to the Court and answered many questions asked of him. Essentially, he denied all of the allegations, save for the allegation that he had left the child at home alone one night. He admitted that, but said much in attempted mitigation, downplaying the seriousness of it and disputing many of the allegations of the mother about the timing. He asserted that the child had told him it was alright for him to leave him on his own, which is what he said the child asked him to do. He asserted the child had told him the mother often leaves them on their own (an allegation the mother denied). Despite all that, the father eventually expressed his acceptance of the inappropriateness of leaving a child that age home alone and asserted that he would not do it again.

6. The father, however, gave inconsistent answers to questions asked about the allegations that his relationship with his live-in partner had broken down. For example, he initially said that his partner had simply returned home to her parents’ home for a short-while to care for her father who was ill. Later, he conceded that there had been a separation, but asserted that it was still merely a trial separation. He denied that the separation had occurred in circumstances of violence.

7. He denied the other allegations and he opposed suspension of the orders, telling the Court that he had already put in place plans to take the two children camping with him for the week of the holidays at some location on the coast. He told the Court that he would not go to work at all and would spend the week the children. He told the Court that he would not leave the children or either of them on their own at any time. He told the Court that he would not subject the children to any physical discipline.

8. That day, over the opposition of the mother, I ordered that the children were to still travel to Victoria and spend the week with their father, conditioned upon the father:

   (i)Not going to work at all and spending the entire week of the holidays with the children;

   (ii)Not leaving the children or ether of them on their own at any time;

   (iii)Not subjecting the children to any physical discipline;

   (iv)Not questioning the children about things they told their mother;

   (v)Not abusing or assaulting the children or any third person in the presence of the children.

9. I adjourned the hearing of the mother’s interim application until Monday, 14 May 2018 and I directed the father to file his Response and supporting affidavit by 2 May 2018.

10. On 20 April 2018, the mother filed an Amended Initiating Application. By that application, the mother again applies for leave to be able to relocate the children with her to live in the United Kingdom. She maintained her interim application for suspension of the children’s time with the father and for him to attend upon a psychiatrist for treatment of his anger issues. She also, incorrectly, included in the interim relief she now seeks an order pursuant to s 79A of the Family Law Act 1975 (“the Act”) setting aside final property settlement orders that were made on 20 February, 2014. Such an application in this case, being a former de facto relationship, is actually to be made pursuant to s 90SN of the Act and is generally not brought on an interim basis. She also sought disclosure orders, orders pursuant to the Child Support (Assessment) Act 1989 (Cth) for departure from administrative assessment of child support and leave to commence proceedings for spousal maintenance pursuant to s 90SF of the Act. Her reference to s 90SF of the Act is clearly a mistake as the power of the Court to make a spousal maintenance order as between two persons who were former partners in a de facto relationship is found in s 90SE of the Act and the leave she seeks (having been separated from the father for greater than two years) is pursuant to s 44(6) of the Act.

11. The mother filed an affidavit on 20 April that she relied upon at the hearing on 14 May. Again, she appeared without legal representation. The father was legally represented on this occasion by a solicitor who appeared, with the Court’s leave, by telephone. The mother still sought suspension of the orders providing for the children to spend time with the father. The father opposed any suspension.

12. The mother raised further issues of concern. Firstly, she asserted that when the children had flown to Melbourne as unaccompanied children on Good Friday that she was contacted by airline staff on their arrival in Melbourne and told that the father had not arrived to collect the children. The mother sent a message to the father to notify him and asking him to let her know when he picked the children up. She said she could not get back on to the airline staff who had contacted her and the father did not respond to her. She said she contacted the Victorian department responsible for child protection and told them what had happened and they rang her back at some point to tell her that the father had collected the children. She said she received a message from the father more than two hours after the scheduled arrival of the plane that he and the children were at his home.

13. Secondly, the mother said that the children stayed with their maternal grandmother and not the father. She then said that the boy stayed with his paternal grandmother for two nights and the girl stayed with her for three nights. They did not go camping. She said the children had told her that the father told them it was because the mother would not allow it.

14. Thirdly, the mother complained that the children had told her of conversations with the father about his former live-in partner. She said the children were now upset with that woman who they had previously liked and reported to her (the mother) that the father had told them that “she had been sleeping with his best friend…and that she had run off with him and they were living together”. The mother complained that the children had told her things that they had allegedly been told by their paternal grandmother as well that, if true, were totally inappropriate things for an adult to be telling children.

15. In addition, to these concerns, the mother hearkened back to her complaints about what had happened in the Summer school holidays and submitted that those facts, all together, supported an interim suspension of the orders providing for the children to spend time with the father.

16. The father had filed a Response, a supporting affidavit and a Notice of Child Abuse. In his final orders he does not seek a dismissal of the mother’s fresh application on the basis of an application of the principles in cases such as Rice and Asplund (1979) FLC 90-725. He seeks a complete change of the existing primary parenting orders such that the children live with him in Victoria and that he has sole parental responsibility for them and with them only spending limited time with the mother in various formats dependent upon whether she moves back to the UK or remains living in Queensland. On an interim basis, the father seeks dismissal of the mother’s interim applications and that the mother undergoes a psychiatric assessment and provides him with all the contact details of counsellors that the children are seeing. He also seeks an order that the children be placed on the Family Law Watch list and that the mother be restrained from travelling outside Australia with them.

17. In his affidavit filed 2 May (nearly two weeks after the mother’s second affidavit was filed), the father refers to his five year relationship with his former live-in partner. In this affidavit, he conceded his relationship with her had actually “ended in January 2018 due to the fact I discovered she was having an affair with a close friend of mine”. He maintained the denial of there being any violence in that relationship and explained how the window in the back door had broken on the night he had discussed the circumstances of the breakup with his partner. He categorically denied the mother’s allegation that he had used an axe to break through the back door.

18. The father also explained in his affidavit his January decision to leave the boy at home alone in the night time. Again, he asserted that the mother had exaggerated the serious of the circumstances and was blowing them out of proportion. He asserted her allegations as to the timing of the event were all wrong. Nevertheless, he said:

    I deeply regret the decision I made that night and it will not happen again.

19. As to the mother’s concerns about the children going with the father whilst he was working, the father confirmed that after his former partner left him in early January, he was required to work “due to unforeseen circumstances and at short notice”. He said “the children had to come with me” and that they requested to go with him. He was clearly conceding that he had taken them in his vehicle with him whilst working.

20. In response to the mother’s allegations that he was not at the airport to collect the children on Good Friday, he said that he had arrived at the arrival gate at the airport at 12:30 pm, the scheduled arrival time, and that the plane had arrived fifteen minutes early. He made no further reference to the matter, including providing no response to the mother’s allegation that she had texted him and he had not responded at the time and had only messaged her over two hours later telling her that he and the children were then at his home.

21. He also responded to the mother’s assertions that he had not taken the children camping as he had told the Court he was doing on the day before Good Friday. He said that he had to change those plans as he had come down with a chest infection. He said in his affidavit that the children had stayed with him and had two sleep overs each at their maternal grandmother’s place. He did not say that he had stayed there with them or had left them with their grandmother.

22. As to the allegation that he had told the children negative things about his former partner, he said that they had wanted to know where she was and that he “explained to them in brief”. He did not deny that he had told them that she had left him for his best friend with whom she had been having an affair.

23. If the mother is telling the truth about what the children told her, the only explanation for that is likely to be that the father did tell them that whilst “explaining” the situation of the absence of his former partner. I am, though, unable to make findings of fact on these matters in the circumstances of an interim application without cross-examination. Nevertheless, the inconsistencies in the information given to the Court by the father when he spoke to the Court, unrepresented, on Thursday, 29 March about the existence or non-existence of the relationship with his former partner and his more recent concession that they did break up in early January certainly gives me cause for concern about the father’s veracity, at least on that subject.

1. I am also quite troubled by the evidence about the children not going camping in that Easter holiday week and the father’s concession, without more, that each of the children slept over at his mother’s place for at least two nights during that week. His failure to confirm that he spent the entire week of those holidays with them as I ordered on 29 March 2018, in itself very much concerns me, particularly as he was legally represented when his affidavit was drawn and sworn. When affidavits drawn by solicitors omit important matters of factual relevance, such omissions can seriously increase Court concern about the factual matters left unexplained.

2. However, it has to be said that the mother has not clearly established that the father contravened the orders that I made on 29 March, particularly the conditions I imposed in order for the children’s time with him that week to continue as previously ordered. Additionally, she has not clearly established that her allegations about the exact factual circumstances, including as to the timing of the events, of the occasion when the father left the boy at home alone in January, are correct and that the father’s evidence about those events is not correct.

3. Nevertheless, I am concerned, in all of the circumstances of this case, and having regard to the evidence that I have referred to, about a number of matters pertaining to the welfare of these children.

4. Clearly, they are caught up in a very high conflict parenting dispute between two parents who plainly struggle to respect each other’s role in the children’s lives and to focus closely and unselfishly on the best interests of the children. I am immediately troubled by the mother’s declared intent to move with the children to the UK if she is permitted, so soon after she previously compromised the proceedings on the basis of giving up that intent. I am also immediately concerned by the father’s quite apparent anger and frustration, demonstrated to me in his interaction with the Court on 29 March, as well as brought into question by the evidence I have seen, and his capacity to be able to manage and control that in his interaction with others, most particularly intimate partners, and just how that might affect his interaction with his children.

5. Ultimately, I do not consider it in the best interests of these two children at this point in time, and on the limited consideration that the process has permitted me so far, to completely suspend the children’s time with their father. Neither do I consider it appropriate to order either the mother or the father to attend upon a psychiatrist for examination or counselling just yet.

6. I do, however, consider that the children’s time with their father, if it is to take place in Victoria at his continued election, should for the time being take place in circumstances where the father and the children either stay for the overnight periods in the home of the paternal grandmother or, alternatively, the paternal grandmother should stay for the overnight periods with the father and the children in the father’s home. I will not be ordering that she supervise the children’s time with the father or that she necessarily be with them during the daytime, but I do consider, for the time being, that it is in the best interests of the children that when they are in Victoria spending time with their father that their grandmother should be in the same house as them overnight. I am, at the moment, satisfied that the paternal grandmother would put the best interests of the children first and that she would be a source of great comfort and assistance to the father in his provision of care to the children.

7. I am particularly motivated to make this order accepting the fact that the father received a great deal of comfort and assistance in caring for the children when they were with him from his former partner. Indeed, I am satisfied that there were times when she cared for the children when they were with her and the father whilst the father went to work. Now that he does not have that support from his former partner, I consider it is appropriate to expect him to source that same sort of support from his mother, who, I accept, lives nearby.

8. The father has not persuaded me, on the evidence that I have seen so far, that he is completely capable of providing suitable care for these children over an extended period of time, on his own.

9. I appreciate that I have not heard whether the paternal grandmother will agree to such terms or whether, practically she can provide that support in the way I currently expect it to be provided. Nevertheless, I will make orders that condition the continued compliance by the mother with the existing parenting orders on the father’s and his mother’s written confirmation to the mother that the father and the children will spend each night in the same residential location as the paternal grandmother, be that the paternal grandmother’s home or the father’s home. There will only be one more school holiday period between now and the next hearing date.

10. I will also continue to condition the mother’s compliance with the existing orders on restrictions on the father taking the children to work with him or taking them unrestrained in his vehicle at any time; on him leaving the children on their own at any time; on him leaving the children with any other person other than the paternal grandmother at any time; on him not subjecting the children to any physical discipline; on him not questioning the children about things that they have told their mother; and on him not abusing or assaulting the children or any third person in the presence of the children.

11. I will also add another restriction, applicable to both parents, that neither parent discuss these proceedings with the children or discuss any inappropriate adult issues with the children.

12. I will also make an order appointing an Independent Children’s Lawyer to represent the interests of the children and ask the Legal Aid Office of Queensland to make the necessary arrangements for an ICL to be selected and funded. It need not be the same ICL who was previously in the matter, but if the Legal Aid Office considers it should be then, it can be.

13. It would, in my mind, be beneficial if Legal Aid Queensland and the newly appointed ICL could give real consideration to setting up some family dispute resolution counselling or some form of child focused mediation for these parents before these proceedings progress too much further and become too far entrenched in the Court process. 

14. I will also adjourn all of the interim applications made by each of the parents to be heard at 10:00 am on Thursday, 26 July 2018, save that I make it clear that I will not hear the mother’s application pursuant to s 90SN on that day. I will not give the father leave to appear that day by telephone. I expect him and any legal representative retained to act for him that day to appear in Court in Brisbane in person.

15. Each of the mother and the father will be given leave to file one more affidavit of evidence in chief and it is expected that such single affidavit will consolidate their evidence in chief, including any that they have already included in the previously filed affidavits. I only want to read one affidavit of evidence in chief from each of the parents before the next hearing date. If that means cutting and pasting material from their earlier affidavits then so be it. If it means not being able to rely on things previously said then so be it. Neither will have a right to rely on any previous affidavit. Such reliance will only be permitted with my leave and good reason will be needed to persuade me to give that leave. Each will also have to file a Financial Statement.

16. As the mother is seeking leave to commence proceedings for spousal maintenance out of time and as she is also seeking child support departure orders, the hearing is likely to take more than two hours and it is likely that the Court will allow cross-examination of each party on the day of the hearing. The mother would be well advised to get legal advice if not representation as her applications raise many issues and invoke many varied statutory provisions.

17. Finally, I mention the interim order sought by the mother asking the Court to “refer the matter of suspected tax evasion to the Attorney-Generals [sic] department”. Such a reference is not generally sought in applications for orders from the Court. The Court certainly is able to refer matters and parts or all of the record in matters (affidavit evidence, exhibits and transcript of oral evidence) to Government authorities if the Court is satisfied that offences are revealed and ought to be further investigated. If that is done, it is usually done on the Court’s own motion and after giving the parties the right to be heard in respect of the possible referral of the matter. In my judgment, it is not appropriate for a party to move the Court for such referral as opposed to concentrating their efforts on otherwise making out their case for the relief they seek in matters within the Court’s statutory jurisdiction. Of course, if a party believes that a crime has been committed or tax laws of the country have been broken, that party is perfectly entitled to take that complaint to the relevant authorities of their own volition. The Court’s judicial sitting time is its most precious resource. It is not appropriate that it be taken up in the pursuit of investigating alleged tax offences simply because a mother or a father, for reasons only known to him or her, wishes to see their children’s other parent prosecuted. It is not appropriate that it be raised in the way the mother has raised it in this case, seemingly to gain some leverage in the ongoing dispute with the father. I will expect to hear submissions from the mother at the next hearing as to why the Court should not simply strike that part of her interim application out.

18. I make the orders set out at the commencement of these written reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 31 May 2018.

Associate:

Date:  31 May 2018