Kerr & Kennett (No 2)

[2018] FamCA 559

FAMILY COURT OF AUSTRALIA

KERR & KENNETT (NO. 2) [2018] FamCA 559

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 on an unsupervised basis under the current orders and also seeks for the father to attend upon a forensic psychiatrist – 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 remain subject to certain conditions – Where the father is not required to attend upon a psychiatrist for anger management treatment at this time.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the mother’s application for an order departing from child support assessments for periods going back beyond eighteen months be dismissed – Where there was insufficient evidence for the Court to use its power to grant leave for the Child Support Registrar to amend administrative assessments and determine a departure application in respect of historic child support periods.

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

APPLICANT: Ms Kerr

RESPONDENT: Mr Kennett

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

FILE NUMBER: MLC 6702 of 2012

DATE DELIVERED: 27 July 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 July 2018

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Ressan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox

Orders

UPON THE UNDERTAKING given on 26 July2018 to the Court by the father that he will not leave the children unattended at any time

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Orders of this Court of 29 March 2018 and paragraphs 1-3 of the Orders of this Court of 31 May 2018, be discharged.

2. 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 continue, conditional upon all of the following:

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

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

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

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

   (v)The father honouring his undertaking given to the Court this day.

3. 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 at 6.00 pm (Victorian local time) each day.

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

5. That the mother shall not question the children about things that the children have told their father.

6. That the father shall use his best endeavours not to expose the children to inappropriate adult things or any denigratory remarks about the mother being said or discussed by third persons and should he not be able to prevent such things being said in the presence of the children by other persons, then he shall immediately remove the children from the presence of such third persons.

7. That the father and the mother each undertake such parenting and similar courses as may be directed by the Independent Children’s Lawyer and provide her and the other parent with written evidence of the completion of such courses when done.

IT IS FURTHER ORDERED

1. That all other interim applications sought by the applicant are dismissed.

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

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 31 May 2018 I made interim orders and gave reasons for those orders in this very long running parenting dispute between the two parents in this matter. Those interim orders were made against a background of final parenting orders having been made by consent between the parties on a number of previous occasions, most recently on 27 October 2017.  Those 2017 orders provided for the mother to have sole parental responsibility for the two subject children who are now eight and seven 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. When the mother consented to those orders, she thereby 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 has remained in B Town with them.

3. As I said in my previous reasons, 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. On 29 March this year, I first heard the mother’s suspension application. That day, over her opposition, I ordered that the children were to still travel to Victoria and spend the Easter holiday 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.

5. 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.

6. As I have also previously said, 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) (“Child Support Assessment Act”) 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.

7. At the further hearing of the mother’s interim application on 14 May 2018, the mother still sought suspension of the final orders she had consented to in October 2017 that provide for the children to spend time with the father. The father opposed any suspension.

8. By my Orders made on 31 May 2018, I rejected the mother’s application for suspension but again conditioned the father’s time with the children upon the same conditions as were included in the orders of 29 March 2018 with the additional condition that the father’s mother spend each night of the time the children are in Victoria in the same residence as the father and the children and the father and his mother to confirm in writing to the mother before the first such visit their agreement with this condition. I also ordered that the father cause the children to telephone and speak with their mother on each day they are with him in Victoria and that neither parent discuss these Court proceedings or any other inappropriate adult issues with the children.

9. The matter was adjourned for further interim hearing before me on 26 July 2018. At that hearing, the mother was again without legal representation. The father appeared represented by his solicitor and experienced counsel. The mother pressed her application for orders suspending the existing parenting orders that provide for the children to spend time with their father in Victoria on an unsupervised basis. She pressed her application for orders that the father attend upon Dr D, a forensic psychiatrist who saw and reported on the parties in 2015, and engage with him for treatment for “anger management issues, family violence issues, any other issue needing treatment as determined by [Dr D].” She also pressed her application for orders that Dr D be provided with copies of existing reports obtained in the earlier proceedings as well as the father’s criminal history and that the father pay for the sessions and subsequent report by Dr D. These applications were opposed by the father.

10. The mother conceded that her misguided application under s 79A (as the parties were never married) should be adjourned for further consideration. In fact, I consider it more appropriate to be dismissed and for the mother to reconsider her position on this and to file a fresh application at a further date if she does intend to pursue relief in the form of setting aside the parties’ previous property settlement orders.

11. The mother also accepted that her interim application for leave to commence maintenance proceedings against the father out of time is currently unsupported by any appropriate evidence and conceded that it also should be withdrawn. In the absence of any supporting, relevant evidence, I will dismiss that, too.

12. Additionally, though the mother’s affidavit of evidence included pages of deposition going to the issue of her proposed relocation of the children to the United Kingdom, she quickly and readily conceded that was a matter for final determination on another day. That was an appropriate concession.

13. Finally, before turning back to the contested parenting issues, I will dismiss the mother’s interim application for an order under the Child Support Assessment Act for an order departing from child support assessments for periods going back beyond eighteen months until 2012.

14. As I understood her submission on the child support matter, she said that the Child Support Agency had, about a year ago, changed the assessment of the father’s liability from around $40 per month to around $260 per month, but had told her that they had no power to backdate that change of assessment beyond eighteen months in the past. Her submission was, therefore, that this Court should make the same change, backdating it to 2012, as it has the power to do so.

15. That the Court has the power to grant leave for the Child Support Registrar to amend administrative assessments that are older than eighteen months or to go ahead and hear and determine a change of assessment or ‘departure’ application itself in respect of historic child support periods that go back beyond eighteen months into the past is not in doubt. However, in considering whether to grant leave the Court must have regard to any responsibility, and reason, for the delay in making such an application, the hardship to the applicant if leave is not granted and the hardship to the other party if leave is granted. In addition, the Court must consider all residual statutory provisions of the Child Support (Assessment) Act 1989 that govern the consideration and determination of ‘departure’ or ‘change of assessment’ applications.

16. As I pointed out to the mother at the hearing, her affidavit of evidence filed and relied upon in the proceedings is almost completely devoid of evidence going to these relevant and determinative matters. With respect to the mother, the child support legislative scheme is difficult enough for judges and experienced practitioners to master, and her inability to appreciate the statutory and evidentiary requirements of this type of application is hardly surprising. Nevertheless, I consider the application she had made must also be dismissed in the absence of sufficient evidence to support it.

17. The mother supported her application for suspension of the existing orders providing for unsupervised time for the children with their father with a submission contending that as the father had not undertaken treatment for his anger management as ordered in 2014 his unsupervised time with the children ought now be conditioned on him first undertaking that treatment and obtaining a report from the forensic psychiatrist who provides it. She submitted that her previous consent to orders providing for unsupervised time was based on a view that the children were actually cared for by the father’s partner, when with the father, and that she was now no longer around, his relationship with her having ended in January this year. The mother holds to the belief that the father’s relationship with that woman ended in violent circumstances, demonstrating the father’s ongoing anger management problems that place the children at an unacceptable risk in his unsupervised care.

18. The mother, however, conceded that there was no evidence at all before the Court, contested or uncontested, that in the Easter holiday and the July holiday when the children spent time with the father, that the children were exposed to any episodes of anger from the father that either harmed them or exposed them to a risk of harm. She also conceded, when asked, that apart from her evidence that the children had told her certain things about the circumstances of the father’s separation from his former partner in January this year, that there was no other evidence that supported the assertion, in the face of the father’s denials. She conceded this whilst acknowledging that she had been in phone contact with the father’s former partner since that separation and having put some text (Facebook) message communication between her and the father’s former partner into evidence. The mother told the Court that she had not even asked the father’s former partner about the issue.

19. The mother went on to assert that the father had breached the conditions that I had placed upon the children’s time with him during the Easter and July holidays. She asserted orally, though not in her affidavit, that the children had been left with the paternal grandmother without the father being present with them as my conditions had required and she asserted that they had been left with another unknown third party named “[E]” without the father being present. She informed the Court that she had filed a contravention application in which she seeks to have the father dealt with by the Court for these alleged contraventions.

20. Acknowledging that she had not deposed to these alleged breaches in her affidavit of evidence, the mother asserted that on 14 May 2018, the father’s solicitor had conceded that the father had left the children with his mother for a few nights during the Easter holiday without staying with them, as my orders required him to do. I had no recollection of such a concession. I told the parties that I would check the audio transcript of that hearing for such a concession. No such concession was made for the father at this hearing on 26 July.

21. The audio transcript of the relevant part of the hearing on 14 May 2018 reads as follows:

    His Honour:   Why did they end up spending time at their Nans?

    Solicitor:       Well, they’ve got a close relationship with their Nan as well

    His Honour:   Yeah … and…

    Solicitor:       [Y] requests it all the time

    His Honour:   What?  To go and stay with Nan?...

    Solicitor:       Yes, they have a farm

    His Honour:   …Without Dad being around?

    Solicitor:       Yes, their relationship is quite fluid

    His Honour:   Did he leave the two children at Nan’s place together on their own without him being there at any time?

    Solicitor:Ahhhhhhhhhh (solicitor heard to ask her client)

    His Honour:   I’m only asking about that week, I’m only asking about the Easter week

    Solicitor:Not in that week, no your Honour

    His Honour:   So he, when they stayed at Nan’s, he stayed there too?

    Solicitor:Yes

    His Honour:   So he can do that?

    Solicitor:Yes

    His Honour:   Righto, how far does Nan live from where he lives?

    Solicitor:(asks client) 15 minutes

    His Honour:   Righto, are there any major hurdles or difficulties in his relationship with Nan?

    Solicitor:Absolutely not

    His Honour:   So he and Nan get on pretty well?

    Solicitor:Very much

22. I am, accordingly, satisfied, respectfully, that the mother was clearly mistaken when she asserted that the father’s solicitor had made the concession that she asserted she had. The father’s solicitor clearly stated the complete opposite of that asserted.

23. The Independent Children’s Lawyer (“the ICL”) submitted that there should be no suspension of the children’s unsupervised time with the father. She also supported a lifting of the condition that I recently imposed for the paternal grandmother to have to be with the father overnight when the children were staying with the father. She effectively submitted, in short compass, that there was no reliable evidence that really justified an ongoing suspension of the father’s time with the children, even though his relationship with his former partner had ended.

24. The ICL observed, quite correctly I accept, that the evidence supports findings that the father and the mother have no viable co-parenting relationship and that they simply cannot communicate in a reasonable fashion. She also submitted that despite the high conflict, there is no objective evidence that the children are currently suffering adverse impacts of exposure to the conflict from which there is an imperative to immediately protect them by way of suspending their time with the father. The ICL submitted that parenting programs such as 123 Magic and the Circle of Security that she understood are offered in B Town and in Melbourne ought to be mandated for the parents at this point in time. I accept that each parent should complete such further courses. I will make orders that provide for this.

25. Counsel for the father, not unsurprisingly, championed the position of the ICL and strongly submitted that the ICL’s submissions ought to be accepted. In particular, he submitted that there is no evidentiary basis for ordering the father to now attend anger management treatment so many years after he was first ordered to undertake it where the mother had, on a number of occasions in the ensuing years, consented to orders for unsupervised time between the children and their father without insistence on the anger management treatment being undertaken. He also pointed to the fact that another judicial officer had ordered unsupervised time between children and father in that time, apparently over the mother’s opposition, without requiring the father to undertake the anger management treatment.

1. Whilst I do harbour some residual concerns as to the exact factual circumstances surrounding the father’s separation from his former partner based on the apparently misleading information the father gave the Court in March when he was without representation, the mother has had ample opportunity to put evidence from the father’s former partner before the Court that might have helped persuade the Court that the father’s anger management remains a critical issue and she has not.

2. I am not now persuaded that the father’s anger management has negatively impacted on the children in the Easter and July school holidays and manifested itself in some direct physical or emotional way upon the children or that they have even been exposed to the father’s anger being directed at third parties. I made the children’s time with the father conditional upon him not subjecting the children to physical discipline, and not abusing or assaulting the children or any person in the presence of the children. There is no evidence before me that he breached either of those conditions.

3. I will not suspend the father’s time with the children as the mother seeks, though I will still make that time conditional upon those same injunctions. If the father presents no unacceptable risk to the children and would not assault them or any other person in their presence and would not physically discipline them in any event, no prejudice or harm is done to him by having the injunctions in place. Yet, they still provide protection for the children and should provide some comfort to the mother.

4. I will lift the condition, or rather, no longer subject the children’s time with the father to the condition that the paternal grandmother be present with them for all overnight visits. The Court was told that such condition imposes undesirable impositions on the paternal grandmother though she enjoys spending time with the children. She has her own life and other things to do, including the desire to travel, that might prevent her from being present for every overnight period the children are with the father. I accept that.

5. Having accepted the father’s undertaking to the Court that he will not leave the children unattended at any time they are in his care, (which I intend also, for good measure, to order him to honour whenever the children are spending time with him), I nevertheless expect, though do not require, the children to still spend a fair amount of time with the paternal grandmother when in the father’s care.

6. I will also lift the condition that required the father not to leave the children with any other person than the paternal grandmother if he is unable to care for them for any reason whilst they are in his care, though it is expected that he will make suitable choices in this respect and also keep the mother reasonably advised in this regard so as to minimise concern on her part.

7. I will not lift the condition that the father not take the children to work with him or take them unrestrained in his vehicle at any time when they are with him. It is not in the children’s interests, in my judgment, that they be taken in a vehicle with the father whilst he is working or that they be taken, unrestrained, in his vehicle at any time. I will make an order preventing it.

8. I will not require the father to attend for anger management treatment with a psychiatrist at this point in time. That is not to say that such an order will not be made at a later time by the Court if evidence emerges in later proceedings that it is justified in the children’s best interests. The father ought to be conscious of anger management, particularly when communicating with the mother as he ought to be aware that inappropriate or unreasonable communication with her is likely to find its way into evidence as it already has.

9. I will continue the injunctive condition previously imposed on the father’s time with the children that the father not question the children about things that the children have told their mother. That, in addition to restraint on both parents from discussing these proceedings or any other inappropriate adult issues with the children, is for the protection of the best interests of the children. The mother will also be restrained from asking the children questions about things the children have told their father.

10. The mother deposed to concerns about things the paternal grandmother said to the children when they were spending time with her in the holidays. If she said the things attributed to her, that was not appropriate and the children should not be burdened with those things. She is not a party to the proceedings. However, I will make an order that the father use his best endeavours to not expose the children to third persons saying inappropriate things to the children and that he shall remove the children from the presence of any such third person if he cannot prevent that person saying such inappropriate things.

11. Finally, I remain satisfied that whilst the children are spending time with the father in Victoria pursuant to the October 2017 final parenting orders, supplemented by the orders I will make in these proceedings, it is in the best interests of the children for the father to cause them to telephone their mother and to speak with her on one occasion every day that they are in his care. I will make such an order. 

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

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 July 2018.

Associate: 

Date:  27 July 2018