King and King

[2013] FamCA 413

FAMILY COURT OF AUSTRALIA

KING & KING [2013] FamCA 413

FAMILY LAW – CHILDREN – Interim application where contact centre orders have failed – Strong resistance by children to contact with husband – Trial where evidence can be tested is necessary.

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr M King

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9554 of 2011

DATE DELIVERED: 16 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Morgan

SOLICITOR FOR THE APPLICANT: Mark M Morgan Barrister & Solicitor

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Davis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

Orders

1. That the wife forthwith provide to the husband disclosure in relation to the properties in her name in Turkey.

2. That the husband and the wife be restrained by injunction from removing the children C born … June 1996, D born … September 2003 and E born … June 2006 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police place the names of each of those children on the Airport Watch List in force at all points of arrival and departure for the Commonwealth of Australia.

3. That the application in a case filed by the husband on 9 April 2013 and the response of the wife filed 19 April 2013 are both dismissed.

4. That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Cronin at 10 am on 5 June 2013 for the purposes of listing the matter for final hearing.

5. That the parties and if represented, their legal practitioners, attend the first day of hearing.

6. That notwithstanding applications/responses have already been filed:

   (a)by 4 pm on 24 May 2013, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   (b)by 4 pm on 31 May 2013, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

7. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposal and on the return date, present to the Court a copy of those orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9554 of 2011

Ms King

Applicant

And

Mr M King

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By application filed 9 April 2013, Mr M King (“the husband”) sought interim parenting orders in relation to his children C aged almost 17 years, D aged 9 years and E aged 6 years.

2. Ms King (“the wife”) was the respondent to the proceedings.

3. The wife was represented by her solicitor and the husband represented himself.  I had the assistance of an Independent Children’s Lawyer.

4. The husband’s application in a case filed 9 April 2013 sought significant orders but in relation to the children, what the husband wrote was not necessarily what he was pursuing.  Bearing in mind that he did not have the assistance of a lawyer, I have endeavoured to work out exactly what his position was from the documentation that he filed.

5. The husband sought the following orders:

   ·    An injunction restraining the removal of the children from the Commonwealth of Australia;

   ·    The parents have equal shared parental responsibility for the children D and E (but not C);

   ·    That each parent have sole responsibility for the welfare of the children whilst they were in their care;

   ·    That each parent spend equal time with the children on a week-about basis with a regime that included pick up and return at school or otherwise at the Suburb G police station and time on a variety of special fixed days;

   ·    An injunction that the parties each be restrained from denigrating, belittling, criticising the other or speaking ill of the other to the children or in the children’s presence;

   ·    A variety of ancillary orders relating to the children;

   ·    That the wife return to the husband some personal items which might best be described as memorabilia;

   ·    A discharge of paragraph 4 of the orders made 29 November 2011 relating to spousal maintenance; and

   ·    That the wife make disclosure of assets in her sole name.

6. The wife filed a response on 19 April 2013 in which she sought interim orders as follows:

   ·    That the wife have sole parental responsibility for the three children “pending a further family report”;

   ·    In the event that the Court granted supervised contact to the applicant, it be undertaken by an unnamed independent person;

   ·    That C accompany her younger siblings to the supervised contact visit;

   ·    That the Court enforce the payment of spousal maintenance (in an unspecified way); and

   ·    That the application for the discharge of the spousal maintenance be struck out until full financial disclosure is made by the husband.

7. The Independent Children’s Lawyer articulated a position in which parenting order applications should simply be dismissed.

8. In support of his application, the husband relied upon an affidavit he filed on 5 April 2013 together with two affidavits by his nieces Ms L and Ms J both of which were filed on 8 April 2013.

9. In addition to her response, the wife relied upon two affidavits which were filed on 19 April and 29 April respectively.

10. In my view, the only orders that should be made are:

    (a)the injunction precluding the removal of the children from Australia; and

    (b)the discovery order sought by the husband.

    Apart from those orders, all interim applications should be dismissed.  

11. In discussion, all parties agreed that the case needed a final hearing and I propose to give them that opportunity.

12. This case has a significant history in a file that began a number of years ago and is contained in a number of folios.  There are 80 documents on the file.

13. For the purposes of this hearing, each party understood that I had read their respective affidavits and they made submissions accordingly.  In addition, as a result of a submission made by the solicitor for the wife, I permitted cross-examination of one of the husband’s nieces and I shall refer to that below.

14. It is of concern that this case has lingered unresolved in the Court and the husband has said on a number of occasions that he has consistently wanted it heard because he has not been seeing his children.  As I pointed out and I do so again, he has never brought a proper application notwithstanding my suggestion that he do so.  The last time that the Court heard any significant parenting dispute was in March 2012 when the parties came before Senior Registrar FitzGibbon who made orders that the children live with the wife and that C spend time with the husband according to her wishes and that D and E spend time with the husband at a contact centre.

15. It was common ground between the parties that the husband has not seen the children since August 2012 and that the arrangements arising out of the orders of the Senior Registrar have not worked.  Ironically, both parties referred to the report of the contact centre submitting different conclusions should be drawn from the facts there set out.  Needless to say, the contact centre involved with these children has declined to continue because the children were distressed.  The husband has since made inquiries about an alternative contact centre but the delays are lengthy.  Thus, notwithstanding his formal application as I have set out above, his real position was that I should commence his time with the children of any nature including under supervision and thus, the nieces were proposed as potential supervisors.

Husband’s proposed supervisors

1. Before dealing with the substance of the proceedings, I take this opportunity to deal with the evidence of the proposed supervisors.

2. Ms L and Ms J are the nieces of the husband.  Ms L attended Court and was required by the solicitor for the wife for cross-examination.  Her evidence was far from satisfactory.  I do not blame her for that situation.

3. In the hearing before the Senior Registrar on 28 March 2012, the husband proposed the same relatives as possible supervisors.  The Senior Registrar described the two women accurately and having regard to the evidence I heard, it is apparent that his position was correct.

4. Ms J who was not present at Court described herself as 23 years of age and currently studying a “[master’s level qualification]” at university whilst working on a casual basis at a retail store.  As I understand that degree, it is a graduate degree usually in fourth year after qualifying for a bachelor’s degree.  I am not sure what qualifications Ms J currently has. She made some self-serving statements about herself indicating that she thought she would be a good positive role model for her cousins.  She thought that it would be beneficial for the cousins to spend time with her (as distinct from their father) on a regular basis so that they were able to grow up in an environment that was “conducive” to not only their well-being but also their educational and social development.  She then went on to say that she had a vested interest in the children and wanted to ensure that they grew up in a warm and friendly family environment. 

5. Ms J said that she had been a part of the children’s life since they were babies and that prior to separation from their father, she had a very strong bond with them.  That evidence was very much disputed by the wife.  Much of what Ms J said was emotive but for the reasons to which I shall now turn in relation to Ms L, it was unhelpful.

6. Ms L affirmed an affidavit indicating that she was a university student and she had gained many skills and knowledge “such as being an independent and responsible young women (sic)”.  She said she would take great care and provide her full assistance in supporting her cousins and that she thought she was capable with skills and dedication, to provide support for her cousins.  She then said that she would accept the role as assistance carer to her cousins whilst they were in the care of their father and that the girls would be well looked after in a “stable and well-function (sic) home”.

7. When Ms L was called to give evidence however, three fundamental issues became immediately apparent.  First, she has had little contact with her cousins for at least two years.  Secondly, she had no idea why supervision was necessary or what the “evil” was against which the children were to be protected.  Thirdly, she could not tell me what she would do if her cousins behaved the way they did as reported at the contact centre.

8. I am satisfied that Ms L and presumably therefore Ms J have little understanding of the role that they were offering to fulfil and that must raise concerns about their objectivity.

9. Accordingly, the evidence of the husband’s witnesses was of no value.

The non-parenting issues

1. As I have set out, the husband sought to discharge the spousal maintenance order which was imposed by the Court. Section 83 of the Family Law Act 1975 (Cth) (“the Act”) provides that if there is in force an order made by the Court in respect of the maintenance of a party, the Court may discharge the order if there is any just cause for so doing, or suspend its operation or vary the amount involved.

2. Section 83(2) provides that the Court shall not make an order increasing or decreasing an amount unless it is satisfied that since the order was made, amongst other things, the circumstances of the person liable to make the payments under the order have so changed as to justify the variation.

3. The husband was the applicant and thus, the onus of proof lay with him and the balance of probabilities was the appropriate standard.

4. The husband’s evidence was limited to the fact that he was unable to meet the payments for spousal maintenance because contract work has been slow and he is just “about meeting” his everyday expenses.

5. No financial statement was filed nor was any detail provided about his current financial circumstances.  I do not understand what his “contract work” was or is.  I have no idea what his daily expenses are.

6. It is important to also recognise that there were significant pieces of evidence given by the husband in a recent hearing concerning his financial circumstances which included the lending of a credit card to another person to purchase significant quantities of retail goods for a business.  The financial position of the husband was disputed by the wife.

7. The absence of precise details as to what has changed since the order was made in 2011 means that there is no justification for a variation.

Enforcement of spousal maintenance

1. As indicated above, the wife also sought the enforcement of the husband’s obligation.  No evidence was led by the wife that would have enabled me to make any orders of enforcement.  The obligation continues to run.

The personal items sought by the husband

1. The husband sought a list of items that he said were left in the matrimonial home when he was chased out of the property by the wife.  He attached to his affidavit a list which included sporting memorabilia.  The wife’s response was that she did not have the memorabilia but believed that the husband had it somehow under his control. 

2. I am not in the position to make any findings of fact in relation to that issue and I bear in mind that the orders sought by the husband are not of an injunctive nature but clearly the pursuit of the exercise of power under s 79 of the Act. There being no evidence that would support such an interim order, I am not in the position to make the orders sought by the husband. I say that even though the current financial proceedings have been struck out by the Court and as such, there is no live proceedings concerning property settlement.

3. Accordingly, the husband’s application for the return of the property cannot succeed on an interim basis.

Discovery

1. The husband sought that the wife make disclosure of documents relating to property apartments held in her name in Turkey.  He said that details had not been disclosed by her to the Court.  In her affidavit, the wife said that this matter had been “ventilated” before the courts on a previous occasion and that there is “no requirement” on her part to make any disclosure in relation to the apartments.  I do not understand what that means.

2. Chapter 13 of the Family Law Rules 2004 provides that each party has a duty of disclosure and that duty applies to each document that is or has been in the possession, or under the control, of the party controlling the document providing it is relevant to an issue in the case.

3. I do not understand why the wife says that there is no such obligation if indeed she does have some interest in those properties in Turkey. The obligation under Chapter 13 of the Rules is absolute. Accordingly, to the extent that the wife does have an interest in those properties, the obligation of disclosure applies and it is ongoing.

4. In his application, the husband sought financial disclosure of how the assets were purchased and details of rental received.  Discovery is not just about information but rather about documents.  I propose simply to order that the wife produce any document in relation to the purchase and/or ongoing retention of the two properties in Turkey.  I do not propose to order that there be a valuation undertaken at this stage having regard to the fact that there is no current proceeding before the Court and to the extent that a valuation has been undertaken already, that can be disclosed pursuant to the documentation description I have just given.

The parenting proceedings

1. In his reasons for making the parenting orders in March 2012, the Senior Registrar referred to a family report.  He noted that the family consultant said that there should be time between the father and children on a weekend that would involve the assistance and presence of a person known by the children.  The Senior Registrar interpreted that as the requirement of some form of supervision and as it turned out, neither party accepted the supervision proposals of the other culminating in the Senior Registrar ordering that the time be spent at a contact centre.

2. As earlier indicated, each party provided what they understood to be a report from the contact centre.  In his affidavit, the husband said that the children attended the contact centre on 1 July 2012 and only spent 10 minutes there.  He said that they:

   Showed that they had been adversely affected by the applicant wife’s negative influence over them in relation to me as their father.

   The support for that assertion he said, came from the contact centre itself.  I do not agree that that is an interpretation that is open to the husband. 

3. The contact centre notes provided by the husband showed that upon entering the playroom, the husband greeted the children but they did not respond.  D turned away from her father and did not engage with him during the entire visit.  She turned her back from him.  The record shows that the husband attempted several times to engage D asking her to participate in activities and indeed, he spoke to her in an age-appropriate fashion.  Despite that, D refused to engage with her father at all and eventually asked the workers to call her mother as she wished to leave.

4. The worker at the contact centre noted that E did not engage with the husband either, raising her hand and telling the worker that she wanted to go.  The husband revealed that he had a present for E and when it was produced, the child took the toy doll and then engaged in play with the husband.  Both husband and child took part in activities including playing with a tea set.  Whilst this was happening, D told the husband, who was endeavouring to involve her in the game as well, to stop talking and she wanted to then leave.  Once that occurred, E then followed despite the worker suggesting that E could stay with her father.

5. The statement that gave rise to the husband’s assertion of parental alienation was that upon leaving the centre, E whispered to the worker that her mother had told her that she was not allowed to hug the husband.  As she was leaving however, E waved to her father.  In her response, the wife said that she had never suggested to E that she could not hug her father and that the child had a speech impediment so that the worker may have misunderstood.

6. All of that becomes irrelevant however when I turn to the report of the contact centre provided by the wife.  This report was some six weeks after the report relied upon by the husband.  The centre then indicated that they were no longer able to provide supervised time and that only one visit occurred which is the one referred to earlier.  The contact centre writer then wrote:

   However due to the emotional distress shown by [D] and [E] during the visit, workers decided it was within the children’s best interest to terminate the visit.

7. The earlier report is not entirely consistent with the “emotional distress” referred to in the second report but needless to say, the options then pursued by the Senior Registrar in March 2012 now seem to have come to an end.  The Independent Children’s Lawyer, supported by the husband, indicated that the inquiries would suggest that there is no prospect of a contact centre being immediately available.  Thus, the husband fell back onto his two nieces.  For the reasons that I have indicated above, I would not be prepared to have them in that role.

Has anything changed?  

1. The contact centre advised the wife that the children needed counselling and that after that was undertaken, an attempt might be again made to reintroduce the children to their father.  It was the evidence of the wife that she had indeed undertaken that counselling with the children and that it had now concluded.  The dilemma however arises from the affidavit material of the wife in which she said:

   There is a real risk that contact with the respondent could be psychologically detrimental to the two younger girls.  The three children do not want anything to do with him.

1. Accepting the wife’s statement at face value, it must mean that the attempts to reintroduce the father through a counselling process have failed dismally.  There was no psychological evidence produced by the wife and her solicitor indicated that he had only come on the record recently and had not been given sufficient time to prepare that material.  That exercise would seem pointless having regard to the clear statement of the wife that it is her view that any time between the husband and the children is psychologically damaging.

2. On the evidence, untested though it may be, I must find that the attempt made by the orders of the Court in March 2012 has failed and that nothing I can implement at this stage would provide a glimmer of hope that the damaged relationship between the husband and the children could be immediately repaired on an interim basis pending the final hearing.  The evidence does not support any such possibility and it is completely inappropriate for the Court to “test the waters” with these children having regard to what they have been through.  The appropriate course of action in my view is to have this case listed for trial notwithstanding neither party had sought an expedited hearing.  A family report may be revisited by the family consultant who undertook the exercise in early 2012.  Whilst that is putting the children through another inquiry exercise, in my view, it is important that some investigation be undertaken to find out why the children have adopted the position they have, including in relation to a child who is almost an adult.

The legal issue

1. Section 60B provides that the objects of Part VII of the Act are to ensure that the best interests of children are met by ensuring that they have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. That is clearly not happening here. Another object is that children are protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. It is very much an issue in dispute in this case that these children have been subjected to the exposure to family violence. Only a testing of the evidence will resolve that issue.

2. The rest of the objects and the principles including that relating to the children’s right to spend time on a regular basis with both parents, are matters that need to be carefully contemplated at a final hearing.

3. Section 61DA provides that a court must apply a presumption when making a parenting order that it is in the best interests of the children that the parents have equal shared parental responsibility.  That presumption can be rebutted on a mandatory basis if the Court is satisfied that a parent has engaged in abuse or family violence.  I would not be prepared to make any finding on the evidence here.  The presumption may also however be rebutted on a discretionary basis if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  Having regard to the nature of the relationship between the parents, it would not be appropriate for them to have anything to do with one another at this stage.  Even on the husband’s untested evidence, there is an allegation that the wife attacked him with a knife.

4. Section 61DA(3) provides that when the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate.  This is such a case.  Accordingly, I do not propose to apply the presumption.

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the children as the paramount consideration.  The best interests are guided by the provisions set out in s 60CC. 

6. It is not necessary that I deal with all of those matters in these reasons having regard to the limited nature of the application.  Suffice to say however, I have considered all of the matters in s 60CC(2) and (3) and (4) and (4A).

7. I am not in a position to make any findings about any of those matters but suffice to say on the evidence before me, the objective view I must take is that the children are expressing very strong views.  It is a matter of concern to the Court as to what weight those views are given.  At this stage, I am not in a position to determine what weight should be given to them.  It is clear that the nature of the relationship of the children with the husband is poor as indicated by the contact centre.  Having regard to the staunch approach adopted by the children, it would not be appropriate for me to make the orders sought by the husband on either the basis that he articulated or his written application. 

8. In my view, the issues need to be investigated comprehensively and that cannot be done without an examination of exactly what the parties intend to litigate about.  Whilst the husband wanted a final hearing as soon as practicable, I am uncertain as to what evidence is to be called to support the orders either party seeks.  Accordingly, I propose to give this case a first day of hearing before a judge as soon as practicable.

9. For the reasons set out above, I propose to make the limited orders and otherwise dismiss all outstanding interim applications.

I certify that the preceding Fifty Eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 May 2013.

Associate: 

Date:  16 May 2013