Klein & Klein
[2010] FamCAFC 150
•18 August 2010
Family Court Of Australia
| KLEIN & KLEIN | [2010] FamCAFC 150 |
| FAMILY LAW - APPEAL – Where the Federal Magistrate expressed the view that an equal and substantial and significant arrangement was desirable but failed to make a practical assessment of whether such arrangements were feasible – Where there was no consideration of where the Mother would live; what support she would have and other practical considerations – Where the Mother would also lose the significant benefit of the support of members of the maternal family – Error established FAMILY LAW - APPEAL – Where the family consultant was not required to consider each and every one of the relevant provisions of Pt VII of the Act but only those matters that were relevant to the best interests of the children – The role of the family consultant – Where the family consultant is ordinarily an expert witness whose task is to assist and advise the court – Where the Federal Magistrate was in error in relation to the reasons she gave for rejecting the opinions of the family consultant – Error established FAMILY LAW - APPEAL – Whether the Federal Magistrate found that the Mother was an unreliable witness and that this finding was wrong and resulted in findings and orders prejudicial to the Mother – Credibility of the Mother – Error established FAMILY LAW - COSTS – Where both parties are financially impecunious – Where the Father was in receipt of legal aid and the Mother was not and where this is unfair to the Mother – Where an earlier hearing of the appeal was vacated by counsel for the Father due to insufficient time to prepare for the hearing – Costs certificates granted to both parties regarding the appeal and the rehearing but not for the vacated hearing |
| A & A: Relocation Approach (2000) 26 Fam LR 382 Anthony Dickey QC, ‘Reflections on MRR v GR – Case Note’ (2010) 84(5) ALJ 296 |
| Evidence Act 1995 (Cth) – s 80 Family Law Act 1975 (“the Act”) – s 60B, s 60CA, s 60CC, s 61DA, s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9 |
| APPELLANT: | MS KLEIN |
| RESPONDENT: | MR KLEIN |
| FILE NUMBER: | MLC | 1118 | of | 2009 |
| APPEAL NUMBER: | SA | 81 | of | 2009 |
| DATE DELIVERED: | 18 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, O’Ryan & Bennett JJ |
| HEARING DATE: | 7 July 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 13 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 794 |
Representation
| COUNSEL FOR THE APPELLANT: | Dennis Baker |
| SOLICITOR FOR THE APPELLANT: | Cash & Stavroulakis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Graham Devries |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym Klein & Klein is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 81 of 2009
File Number: MLC 1118 of 2009
| MS KLEIN |
Appellant
And
| MR KLEIN |
Respondent
Reasons For Judgment
Introduction
This is an appeal by Ms Klein (“the Mother”) from a judgment a Federal Magistrate pronounced on 13 August 2009 in parenting proceedings. The Respondent to the appeal is Mr Klein (“the Father”).
The Federal Magistrate made the following orders:
1. The mother and father have equal shared parental responsibility for [the child X] born … 1999 and [the child Y] born … 2007.
2. With effect from 24 January 2010, the mother is restrained from living more than 40 kilometres from [M] Primary School in Bendigo without the consent in writing of the father.
3. The mother and father are each restrained from relocating the residence of [the children X and Y] more than 40 kilometres from the [M] Primary School in Bendigo without the consent in writing of the other parent.
4. After the mother returns to the Bendigo area:
a.[The child X], and, when he turns eight years old, [the child Y], live with their mother from Friday after school in alternate weeks to the following Friday after school and live with their father from Friday after school in the other week to the following Friday;
b.until [the child Y] starts school, [the child Y] live with his father and spend with his mother:
i.alternate weekends from after school on Friday to 5pm on Sunday, on the same weekend that [the child X] is with his mother; and
ii.each Tuesday and Thursday from the commencement of school until the conclusion of school;
c.between [the child Y] starting school and turning eight years old, [the child Y] live with his father and spend with his mother alternate weekends from after school on Friday to before school on Wednesday, on the same time that [the child X] is with his mother.
d.[The children X and Y] spend half of the long summer holidays with each parent each year and unless otherwise agreed [the children X and Y] are to spend with the mother the first half of the holidays commencing in December 2010 and each alternate year thereafter and they are to spend with the father the first half of the holidays commencing December 2011 and each alternate year thereafter;
e.[The children X and Y] spend time with the parent with whom they are not living in the relevant week from 5.00pm Christmas Day to 5.00pm Boxing Day;
f.[The children X and Y] spend from 8.30am on Easter Sunday to 4.00pm on Easter Monday with the parent with whom they are not living at the relevant time;
g.[The children X and Y] spend time with the parent with whom they are not living in the relevant week from 3.30pm to 7.00pm on their birthdays and on the birthday of the parent with whom they are not living in the relevant week;
h.[The children X and Y] spend time with their mother from 11.00am until 6.00pm on Mother’s Day;
i.[The children X and Y] spend time with their father from 11.00am until 6.00pm on Father’s Day;
j.[The children X and Y] spend time with one or the other of their parents at such additional or other times as the parents agree;
k.changeover occur at [the child X]’s school, or, if he and [the child Y] are not attending school that day, at the home of the parent with whom he will be staying after the changeover.
5. Before the mother returns to the Bendigo area:
a.[The children X and Y] live with their father;
b.[The children X and Y] spend with their mother:
i.half school holidays and unless otherwise agreed the first half;
ii.from Friday after school to 5.00pm on Sunday on any weekend she chooses, provided that she gives the father seven days written notice, and provided it is not on the Father’s Day weekend;
iii.such other or additional times as the parents agree;
iv.changeover occur at [the child X]’s school or, if [the child X] is not at school, at the father’s house.
6. [The children X and Y] communicate by telephone with the parent with whom they are not living on up to one occasion on any day provided that it is before 7.30pm, with the parent with whom [the children X and Y] are not living to make the call and the parent with whom [the children X and Y] are living to facilitate the call.
7. The mother and father be at liberty to attend all school functions, activities and events that parents with the child at the school would ordinarily attend unless the school directs otherwise.
8. The mother and father be at liberty to attend any organised extracurricular activities engaged in by children.
9. The mother and father each advise the other of any medical treatment received by [the child X] or [the child Y] while they are in that parent’s care and advise the other parent of the name, professional address and telephone number of the medical professional concerned.
10. The mother and father advise each other of any proposed change of residential address, email address or landline telephone number seven days before the change takes place.
11. Each party:
a.attend and complete, as soon as practicable, a Parenting Apart post separation parenting program (“the program”) at an organisation or organisations as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
b.sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
c.pay and otherwise be responsible for all costs associated with the program; and
d.provide an appropriate certificate of completion of the program to the other parties or their solicitors.
12. In the event that the mother and father are unable to resolve any issues that may arise relating to their care of [the child X] or [the child Y], the mother and father, at the request of either of them, are to immediately seek professional assistance from Relationships Australia or such other organisation as they may agree, and comply with all reasonable requests and directions of the organisation.
13. Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [the child X] or [the child Y] and from permitting any other person to do so.
14. Each party and their servants and agents are restrained from discussing these proceedings with or in the presence or hearing of [the child X] or [the child Y] and from permitting any other person so to do.
At the time of judgment the Father was residing in Bendigo and the Mother was residing in Adelaide. As a result of interim orders made by the Federal Magistrate on 3 April 2009 the two children were ordinarily residing with the Father in Bendigo. The Mother sought that the children ordinarily reside with her in Adelaide. The effect of the final orders made 13 August 2009 was to require the Mother to reside in Bendigo.
The child X is attending school. If the Mother resided in Bendigo then the effect of the orders of the Federal Magistrate was that during the school term the child X would spend equal time with each parent being for each alternate week. The effect of the orders was that during the school term the child Y, until he starts school, would spend time with the Mother each alternate weekend from after school on Friday to 5.00 pm on the following Sunday and each Tuesday and Thursday from the commencement of school until the conclusion of school. In other words, in each 14 day period, the two children would reside in the same residence for eight days. There would be five nights when the children would be separated. The consequence of the orders would be that when the child Y commenced school in 2015, in each 14 day period during the school term the child Y would spend time with the Mother for five nights being each alternate week from after school on Friday to before school on the following Wednesday. In each 14 day period there would be perhaps two nights when the children would be separated.
We observe that the judgment of the Federal Magistrate made provision for the children to spend time with the Mother until she commenced to live in Bendigo by January 2010.
Both parties reside in rented accommodation. During the relationship of the parties they lived in South Australia, Victoria and New South Wales. During the hearing before us we were informed, and accept, that the Mother was still residing in Adelaide.
Both parties are dependent on social welfare payments and are financially impecunious. According to the evidence of the Father, during the relationship he undertook and successfully completed a course in business studies, a course at a radio school, a course in computer studies and a security course. The Father undertook numerous occupations including as an actor, comedian and cleaner.
During the hearing before us, counsel for the Father conceded that order 2 made by the Federal Magistrate should be discharged with effect from 13 August 2009 and that we should forthwith make this order. Counsel for the Father also informed us that order 4 should be discharged, or at least suspended, and that this order should also be made forthwith. Counsel for the Father submitted that all other orders should remain in place and the parties granted liberty to apply to deal with the issue that arises as to the amount of time the children are to spend with the Mother. It was also submitted that order 5 “probably” required “more detailed consideration given that it’s clear that the mother’s not going to return to the Bendigo area” (Transcript, 7 July 2010, p 40).
As a result of the Father’s admissions orders 2 and 4 made by her Honour were discharged by consent. It was therefore accepted that the Mother would remain living in Adelaide; an order could not be made that required the Mother to leave Adelaide and move to Bendigo; and consideration should then be given to orders in relation to the amount of time the children were to spend with the Mother and hence the request that the parties have liberty to apply.
In discussion before us, counsel for the Father submitted that in the event that an application was made in relation to the amount of time the children were to spend with the Mother, then no issue would be raised by the Father as to the necessity for the Mother to demonstrate a change in circumstances since the orders of the Federal Magistrate: see Rice and Asplund (1979) FLC 90-725 (Transcript, 7 July 2010, p 40 to 41).
It was then submitted on behalf of the Father that in the alternative, the proceedings should be remitted for reconsideration of the matters “that should have been considered and addressed and assessed” by the Federal Magistrate. Namely, the matters that were identified by the High Court per French CJ, Gummow, Hayne, Kiefel and Bell JJ in MRR v GR (2010) 263 ALR 368, 42 Fam LR 531 (Transcript, 7 July 2010, p 41). Submissions were made as to whether this issue should be heard by the Federal Magistrate or the members of this Full Court.
It was then submitted on behalf of the Father that a third alternative was that “the matter be remitted to the Federal Magistrates Court to be heard de novo”. It was submitted that if this were to occur then an independent children’s lawyer should be appointed; there should be updating material from both parties; and that a family report that addresses all of the issues should be prepared (Transcript, 7 July 2010, p 41). We observe that it was submitted that the rehearing was “unlikely to take less than about five days”.
Further submissions were made by counsel for the Father in relation to the need for an “interim hearing to determine what should happen with respect to appropriate parenting orders pending the final hearing of the matter” (Transcript, 7 July 2010, p 41). Next, that “the process is put into place as soon as possible” (Transcript, 7 July 2010, pp 41 to 42). Subsequently, that we request to the Federal Magistrate’s Court to provide an “urgent directions hearing” (Transcript, 7 July 2010, p 42).
It was requested during the course of the hearing that submissions be made in relation to the contentions of the Mother in her amended notice of appeal. Counsel for the Father then made submissions including that the discharge of orders 2 and 4 made by the Federal Magistrate would cure “the glaring defects in her Honour’s decision” and that there was a “very clear failing on the part of the federal magistrate, with respect, on a question of law” (Transcript, 7 July 2010, pp 47 and 54).
Orders of the Full Court delivered 7 July 2010
On 7 July 2010, at the conclusion of the hearing before us, we made the following orders:
BY CONSENT, IT IS ORDERED:-
(1) Orders 2 and 4 are discharged from the date of the making of those orders, being 13 August 2009.
IT IS FURTHER ORDERED:-
(2) The appeal otherwise is allowed.
(3) Orders 1, 3, 5 – 14 of the orders made on 13 August 2009 are set aside.
(4) The matter is remitted for re-hearing by a Federal Magistrate other than Federal Magistrate Riley.
(5) Until further order:
a)The mother spend time with the children in accordance with order 5(b) of the orders made 13 August 2009 and the children otherwise live with the father.
b)Orders 6 to 10 of the orders made 13 August 2009 continue until further order.
(6) The Court grants to the appellant mother a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs she has incurred in relation to the appeal, including the costs of the adjournment of the hearing of this appeal.
(7) The Court grants to the respondent father a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs he has incurred in relation to the appeal.
(8) The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred by them in relation to the re-hearing.
(9) It is recommended that the further hearing of this matter, including directions hearings and the interim hearing, be expedited.
IT IS NOTED:
The provision of time the children spend with each party described in order 5 above is intended only to put into place a temporary regime pending the application of either party for further or different interim orders.
These are our reasons for making the above orders.
The Father resides in Bendigo in Victoria and the Mother resides in Adelaide. We understand that the distance between Adelaide and Bendigo is approximately 641 kilometres or approximately seven hours travel time. During the hearing before us it was conceded by the Father that given that each parent is “wedded to their present residential location” an equal time or substantial and significant time regime would be impractical (Transcript, 7 July 2010, p 47).
On 3 April 2009 an order was made by the Federal Magistrate for the appointment of an Independent Children’s Lawyer for the children. However, for reasons said to be associated with the funding or lack thereof for an Independent Children’s Lawyer in proceedings in the Federal Magistrates Court, the order was never put into effect and the children and her Honour did not have the benefit of an independent children’s lawyer.
The Federal Magistrate did have the benefit of a family report prepared by a clinical psychologist, Dr Q. The family consultant made the following recommendations:
61. Given the history of this matter, Court ordered parenting arrangements should be, with respect, clearly and precisely documented.
62. It is recommended that [the Father] and [the Mother] have joint responsibility for the long term care, welfare and development of the children, and have responsibility for the day to day care, welfare, supervision and development of the children when in their respective care.
63. It is recommended that [the children X and Y] he permitted to live with their mother … . This recommendation is on the basis of her greater capacity to care for their current developmental needs, given the age of the children, given [the child X]’s special developmental needs, her capacity as having acted as primary carer until the date of the most recent Recovery Order and her capacity to provide what would appear to be a more stable and appropriate residential environment.
64. [The children X and Y] should be permitted to spend time with [the Father] for 50% of the South Australian school holiday periods. [The children X and Y] spending time with [the Father] during school holiday periods should be precipitated by [the Father] demonstrating that he has a residential facility suitable to accommodate the boys at the time of, and for the entirety of the school holiday period.
65. Increased periods of time for [the children X and Y] to spend time with [the Father] could be considered at such time that he is financially able to afford more frequent and ongoing contact.
66. Prior to the recommendations outlined in point 63 and 64 [the Father] should be required to provide [the Mother] via legal council with documentation such as a rental inspection report as to the safety and suitability of the environment for [the children X and Y] to spend time at the residence.
67. In order to ensure there are no ongoing concerns with respect to [the Mother]’s medication or medical issues it is recommended that she be required to provide on a six monthly basis a medical report detailing the stability of her back injury, ongoing treatment and if necessary a drug screen.
The Federal Magistrate did not accept the recommendations of Dr Q. Her Honour said at [33] and [35] of her reasons that she should not “give significant weight” to the recommendations.
We observe that the proceedings were commenced by application filed by the Father on 12 February 2009 and that at all times the proceedings were before the same Federal Magistrate. In the proceedings the Federal Magistrate made a number of orders including a location order, a recovery order and interim and final parenting orders.
Background
The Father was born in 1960 and the Mother was born in 1977.
The Father has previously been married and he has adult two sons from that relationship, Z and T.
The Father contended that in the mid-1990’s he completed a parenting course.
On behalf of the Father, evidence was given by his son, Z, who swore an affidavit on 27 April 2009. Z gave evidence that he lived with his mother and did not have any contact or association with his father between December 1998 and 2006. He contended that he believed that his father did not want anything to do with him. He has since realised that his mother and grandparents ostracized him from his father and has been in contact with him. Z contended that what his grandparents and his mother said about the Father caused him extreme emotional trauma. There was no evidence from the Father’s ex-wife or the grandparents.
The parties met in August 1998 at a hotel on the Mornington Peninsula in Victoria. The Father was working at the hotel as a stand-up comedian and the Mother was working there reciting poetry she had written. In an affidavit sworn by the Father on 24 April 2009 he suggested at paragraph 2(ii) that at that time he was also the manager of a “local blues band”.
The Federal Magistrate observed at [21] that in October 1998 the Mother returned to Adelaide for her 21st birthday and the Father followed. The Mother and the Father commenced cohabitation on 24 October 1998. The parties lived “in the father’s van”. The Mother became pregnant two months later.
On 29 April 1999 the parties moved into a unit at D, a suburb of Melbourne, Victoria. The Father contended at paragraph 2(x) of his affidavit sworn on 24 April 2009 that at this time he was working at a car company in D.
In August 1999 the child X was born.
The Federal Magistrate observed at [25] that the parties remained in the unit in D for 17 months until 12 September 2000 when the Father went to work as a volunteer at the Sydney Olympics. The Mother and the child went with him.
Dr Q said at paragraph 14 of the family report:
Sometime shortly after giving birth to their first child, [X], [the Father] apparently announced that he had had a lifelong ambition to go and work as a volunteer for the Olympics. Despite having a young child and no home, at [the Father]’s insistence, the couple moved back into [the Father]’s van and moved to Sydney in order for him to participate as volunteer at the Sydney Olympics. It appears that [the Mother] and the child remaining in the family home was not financially viable. During the period of the lead up to the Olympics the couple and [the child X] lived predominantly within [the Father]’s van and in a tent. At some stage during the period of time that he was working at the Olympics they had short periods spent staying in a room provided for them free of charge by another Olympics volunteer.
Upon arrival in Sydney the family stayed in the Father’s van for seven days and then moved into a house in H in Sydney for a few weeks. At about this time, the parties decided not to return to the unit in D.
In paragraph 2(xi) of his affidavit sworn on 24 April 2009 the Father suggested that he obtained some “disc jockey work”.
The family then lived in a tent at a caravan park in N in Sydney for about a week.
Between 3 November 2000 and 8 December 2001 the family lived in a one bedroom unit in E in Sydney.
In December 2001 the family spent approximately two weeks in a tent and in their motor vehicle at caravan parks at K and C in the Blue Mountains. In his affidavit sworn on 24 April 2009 the Father deposed at paragraph 2(xii) that he was advised by an actor friend that cheaper accommodation could be obtained in the Blue Mountains.
Between 23 December 2001 and 9 April 2003 the family lived in a house in C.
In his affidavit sworn on 24 April 2009, the Father deposed at paragraph 2(xiii) that he had contract work for three nights per week at an entertainment complex as a “Trivia Host” and also “random jobs as an extra in various television commercials and shows”. The Father also said that he was accepted by “the government sponsored NEIS program which enabled [him] to gain a certificate in Business Studies”.
In about April 2003 the family commenced living in Bendigo. The Father’s sister offered him some work in her café in Bendigo. For approximately one month the family lived behind the shop premises.
The Mother gave evidence at paragraph 17 of an affidavit she swore on 3 April 2009 that the parties “were asked to leave”. In his affidavit sworn on 24 April 2009 the Father contended at paragraph 2(xiv) that he complained to his sister about how his brother in law was treating the Mother and “the language he was using towards her”.
The Mother gave evidence at paragraph 18 of her affidavit sworn on 3 April 2009 that the Father’s behaviour at this stage became increasingly erratic and unstable and she requested her mother to take the child X to live with her in South Australia. The Father in his affidavit of 24 April 2009 deposed at paragraph 2(xv), however, that both parties became “very depressed and upset over what had happened” and were forced to live in a motor vehicle and managed to get emergency accommodation at M Caravan Park in Sydney’s west. The Father contended that during the time the parties were at this caravan park they received a message from one of his sister’s staff members that his sister had reported the parties to child welfare and because of this the Mother organised for the child X to stay with her mother “until [the Mother and Father] could get [their] heads around what had happened and try to work out [their] future plans”. The family stayed at the caravan park at M for about a week.
In or around late May 2003 the family moved to Adelaide. They went to the maternal grandmother’s house. They spent about one week in the house and then moved into a converted shed in the backyard.
In his affidavit of 22 April 2009 the Father deposed at paragraph 2(xv) that the maternal grandmother offered the parties to stay with her in Adelaide however the parties were told that they had to stay in the garage. The Father said “we were there for about six months but there were mice, spiders, red backs and we were all treated like second class citizens by the maternal grandmother and especially her husband”.
In about December 2003 the family ceased residing at the maternal grandmother’s home and commenced to stay in various caravan parks in South Australia until 14 February 2004. In his affidavit of 24 April 2009 the Father deposed at paragraph 2(xvi) that the parties decided to move out of the home of the maternal grandmother and move to the R Caravan Park, north of Adelaide.
We observe that in his affidavit of 24 April 2009 the Father deposed at paragraph 2(xvi) that at this time he was doing some work for a company called PY. He also contended that he commenced and completed a course at a radio school in Adelaide.
In or around February 2004 the family moved to a caravan park at S, north of Adelaide, and were sleeping in either their car or tent. During this time the Mother suffered a miscarriage. The Federal Magistrate observed at [28] that the owners of the caravan park permitted the family to stay in a caravan for six weeks in exchange for the Mother cleaning the toilets and showers. The Federal Magistrate also observed at [28] that the family stayed at the S Caravan Park for about six months between February and August 2004.
The Father contended at paragraph 2(xvii) of his affidavit dated 24 April 2009 that after a week at the R Caravan Park the parties commenced to reside in their motor vehicle and their tent at S Caravan Park. The Father contended that at “about this stage” the parties’ tent “was becoming unserviceable” and they “were given a free tent by another couple of the park”. However, there was a dispute with the owners of the tent and they took it back. The Father contended that “[m]anagement was pretty upset about this and let us stay in a caravan for nothing”.
The Father also contended at paragraph 2(xvii) of his affidavit of 24 April 2009 that he was “applying for many jobs”.
On or about 4 August 2004 the family commenced living in a house at G. G is about three hours drive from Adelaide.
The Mother deposed at paragraph 21 of her affidavit of 3 April 2009 that the parties obtained a council based home in G. The Father deposed at paragraph 2(xviii) of his affidavit of 24 April 2009 that the parties placed their name on the South Australia Housing Trust (“SAHT”) list at the beginning of January 2004 and in July 2004 were advised of the availability of a house in G which they accepted.
The Father contended at paragraph 2(xviii) of his affidavit of 24 April 2009 that soon after the parties commenced living at G he was admitted to G Hospital and that “stress was believed to be the cause of my collapse and I was given an appointment to talk to a psychologist”.
Before proceeding, we observe that at paragraph 2(xxiv) of his affidavit of 24 April 2009 the Father said: “I certainly suffer from depression”. At paragraph 2(ix) of the same affidavit the Father contended that he “never attempted suicide but I did talk about it on a few occasions and tried to seek help but was told that I would work my way out of it when our child was born and I would feel different”. The Father said that at the time he was going through problems with his ex-wife regarding their children and was very depressed with the situation “and certainly at times felt like I did not want to live because I could not have contact with my sons”. The Father deposed that the Mother was “an enormous help to me during this period and I believe that if it was not for her at the time I may have attempted suicide”. At paragraph 2(xx) of the same affidavit the Father also deposed that “the only times [he] mentioned suicide was during the extremely difficult period of my life when my ex-wife was preventing me from having contact with my two older sons”.
In his affidavit of 24 April 2009 the Father contended at paragraph 2(xviii) that whilst in G he completed a course in computer studies at TAFE.
In November 2005 the parties were married.
In his affidavit dated 24 April 2009 the Father deposed at paragraph 2(xxii) that “since just before [the child Y]’s birth I was spending about 90% of the night working as a cleaner or building two websites”.
In February 2007 the child Y was born.
We observe that at paragraph 2(xxiii) of his affidavit of 24 April 2009 the Father deposed that his son T “was also with us in the backseat of my car when [the Mother] gave birth to [the child Y] in the front seat”.
We were also informed, and it was not disputed, that during the relationship the Mother had four miscarriages.
In his affidavit of 24 April 2009 the Father deposed at paragraph 2(xxxi) that until the end of 2007 he used to “smoke marijuana regularly”.
We observe that Z deposed at paragraph 10 of his affidavit sworn on 29 April 2009 that the Mother “always seemed to have lots of time to sleep, watch television & smoke marijuana”. However, Z gave no evidence of the use of marijuana by the Father.
We also observe that in his first affidavit sworn on 11 February 2009 the Father deposed at paragraph 9 that the Mother “is also smoking marijuana”. In his affidavit sworn on 24 April 2009 the Father deposed at paragraph (xxvi)(e) that the Mother advised him that one of the reasons why the Mother left the Father was because “[s]he could buy marijuana in South Australia as she believed it was the most effective pain relief available for her medical problem”. The Father gave no evidence in his affidavit sworn on 21 July 2009 about the Mother’s use of marijuana. In fact, the Father gave evidence that the Mother was a very good and caring mother.
In his affidavit of 24 April 2009 the Father contended at paragraph 2(xxiii) that his son T stayed with the parties in G “for over a year until a few days before” the parties moved to Bendigo and he slept in the same room as the child X.
On or around 8 December 2007 the family commenced living in a house in Bendigo.
The evidence of the Father as to his employment after the parties commenced to live in Bendigo is confusing. In cross-examination the Father gave evidence that “within three weeks of moving to Bendigo” he was “delivering meals for a business called [K Company]” (Transcript, 22 July 2009, p 8). The Father’s evidence suggested that he ceased this employment in about July 2007 and when asked in cross-examination: “What did you do from July until the end of the year?” he replied: “I was working on a website [website omitted]” (Transcript, 22 July 2009, p 8). In cross-examination the Father contended that he “began building that website in December 2007” (Transcript, 22 July 2009, p 9). The Father was asked what had happened to the website and he replied: “Its still going at the moment but I’ve just been doing dribs and drabs on that trying to build it”. The Father also said that he has only earned “a very small amount” of money from the website (Transcript, 22 July 2009, p 9).
We observe that in relation to his proposals for his future care of the children, in his affidavit of 24 April 2009 the Father contended at paragraph 2(xxxi), that he “would work through the night on my website”.
The Father also gave evidence that suggested that in mid-2008 he was “doing a security course which was in two parts in the latter half of last year” (Transcript, 22 July 2009, p 8).
In his affidavit of 24 April 2009 the Father contended at paragraph 2(xxii) that in July 2008 the Mother was diagnosed with having arthritis. We observe that in cross-examination the Father said that the Mother “was a very good mother up to the time when she had her injuries” (Transcript, 22 July 2009, p 44).
The Federal Magistrate said at [5] that the child X “has had some very serious behavioural and emotional issues. A report dated 2 December 2008 from Bendigo Child and Adolescent Mental Health Services (“CAHMS”) showed that [the child X] had difficulty with his attention, concentration and impulse control and also with his ability to make friends”.
In cross-examination, the Father contended that in December 2008 he obtained a security licence after having completed a course. It was unclear whether the course took six weeks or six months (Transcript, 22 July 2009, pp 69 to 70). The Father was asked who paid for the costs of his undertaking the course and he said “my employment agency” (Transcript, 23 July 2009, p 70). He was asked whether or not it was paid for by Centrelink and he said “no, it was through [Employment Agency Pty Ltd]”. The Father provided no further information about “[Employment Agency Pty Ltd]”. He was then asked: “What work have you done in the security industry? --- I worked at [MPO Pty Ltd] from 1983” (Transcript, 23 July 2009, p 71).
The Father gave evidence at paragraph 10(n) of his affidavit of 21 July 2009 that he was aware that the Mother had “some thoughts of all of us moving to South Australia”. However, the Father said that he “had only recently obtained [his] security licence and that licence would be invalid in South Australia and I would have to spend over $2,000 to gain the licence in South Australia”.
We observe that in re-examination the Father was asked if there was anything that would stop him from going to South Australia to live and he said “look, there is the practical side which is financial and there’s also the other side, whereas, my – history that I have had employment wise over there has been the worse that I have ever experienced in my life” (Transcript, 23 July 2009, p 67). He also said: “Plus, there a lot of people over there who just don’t like me, to be quite honest and I have never got on with. I really do not like the place” (Transcript, 22 July 2009, p 67).
In January 2009 the Mother spent a week with her sister in South Australia. In his affidavit of 24 April 2009, the Father contended at paragraph 2(xx) that the “first time” that the Mother ever mentioned leaving was in January 2009 and that she was determined to do so after spending a week with her sister.
The Father gave evidence that suggested that in January 2009 he was working at a major sporting event in Melbourne doing “crowd control work” (Transcript, 22 July 2009, p 8). The Father gave evidence at paragraph 10(p) of his affidavit of 21 July 2009 that at some point he was working at the sporting event.
On 24 January 2009 the parties separated.
The Federal Magistrate observed at [2] that on 24 January 2009 the Mother left the family home in Bendigo with the two children and took them to Adelaide. Her Honour said:
the mother did not have permission from the court or the father to do so. The mother left a note for the father saying that she had left with the children but did not say where she was going. The father suspected that she was in Adelaide with her family. He telephoned her or sent her a text message every day for some weeks. However, the mother did not answer the father’s telephone calls or respond to his messages.
We observe that the Federal Magistrate did not address what the Mother said in the note that she left for the Father. A copy of the note is attached to the affidavit sworn by the Father on 11 February 2009. The Mother said a number of things including that she would never stop the children having a relationship with the Father and that the parties “will talk sometime in the future”.
The Federal Magistrate observed at [6] that after being taken by the Mother to Adelaide, the Mother placed the child X in the care of his maternal grandmother while the Mother and the child Y lived at the Mother’s sister’s house. Her Honour observed that the Mother was about 40 minutes drive away from the child X. The child X was able to see his mother and brother on weekends.
The Federal Magistrate observed at [7] that the maternal grandmother arranged for the child X to attend W Primary School in V in Adelaide. Her Honour said that the child X “was recommended for emergency intervention while he was at that school” and that “[h]e was assessed as a potential danger to himself and others”. Her Honour then observed that “[t]he report particularly mentioned” and thereafter her Honour set out what was in the report in relation to the child X namely his “attention seeking behaviours”; “school refusal”; “difficulties following instructions”; “threats to kill himself”; “threats to kill others”; “physical violence towards others at school”; “threats to run away on several occasions”; and “threats to bring a knife to school to slash other children’s school bags”.
The Federal Magistrate observed at [8] that the Mother “was asked about this in cross-examination” and that she maintained that the child X “had a meltdown on one day. She said it was the day after he had spoken to his father on the telephone for the first time since going to Adelaide. The father had telephoned the maternal grandmother’s house in the hope of locating his family, and the maternal grandmother’s husband had allowed [the child X] to speak to his father”. Her Honour said:
9. The mother did not suggest that there was anything untoward about the content of the conversation. However, the mother implied that [the child X]’s emotional state the following day was all the father’s fault. The mother’s claim that [the child X] only had problems on one day does not sit well with the information that he had threatened to run away on several occasions and that he was engaging in school refusal. It could be expected that school refusal would only be noted if it was more than an occasional problem.
It is not apparent to us what “report” the Federal Magistrate was referring to at [7] and [8]. We observe that at paragraph 37 of the family report Dr Q said:
It is reported that [the child X] has been referred for support services in South Australia due to behavioural, social and emotional difficulties. He is reported to have severe attention seeking behaviours, school refusal, and difficulties in following instructions. He is reported to have made threats to kill himself and others and has been physically violent towards others within the school setting. It is also reported that he has threatened to run away on several occasions and has made threats to bring a knife to school to slash other children’s school bags.
We observe that some of the matters described by the Federal Magistrate at [7] and [8] were put to Dr Q during her cross-examination but the “report” or source of the information was not identified (Transcript, 24 July 2009, pp 141 to 142). In cross-examination Dr Q said that she could not categorically state that what she described about the child X “was after he went to South Australia or not” (Transcript, 24 July 2009, p 142). Dr Q said that it was a “summary of all the behaviours that have been described in various reports about [the child X]” (Transcript, 24 July 2009, p 142). We observe that in cross-examination the Mother corroborated some of what Dr Q said about the child X when the child was at W Primary School (Transcript, 24 July 2009, p 114). We also observe that there was no evidence from any of the schools that the child X attended in South Australia.
In any event, we observe that in an affidavit sworn on 21 July 2009 the Father deposed at paragraph 11(d) that the Mother “was a caring and loving mother up until the time she relocated to South Australia”.
We observe that during the cross-examination of the Father he gave evidence that he had been approached by AB Company in Melbourne and that he would be contacting “them as soon as the court proceedings are finished in regards to getting some employment there” (Transcript 22 July 2009, p 9). Elsewhere in his evidence the Father suggested that in early 2009 he was offered employment with AB Company. He gave evidence that he had “put on hold an application to [AB Company] who called me earlier this year” (Transcript, 23 July 2009, p 68).
On 7 February 2009 the Father drove to Adelaide and parked outside the home of the Mother’s sister. The Federal Magistrate said:
125. [The Father] waited to see if the mother or children appeared. The police approached him and asked him if he was a fire bug. He said he was just taking photographs of horses. That was obviously nonsense, but the police let him be.
126. While the father was outside the property, he sent the mother text messages saying that he knew a man had just left the house, advising her not to be alarmed by his presence, saying that he was getting two more things for his lawyer, and saying that “the cops were cool”. [Aunty S] confirmed that a man had in fact left her house. She said he was her housemate, [D]. The father did not see any sign of the mother or [the children X or Y] and eventually went away. [Aunty S], [D], the mother and [the child Y] moved out of that house a few weeks later.
127. It was understandable that the father wanted to find out where his wife and children were. If the mother had told him exactly where they were, he would probably not have behaved as he did. However, it was obviously quite disturbing for everyone in the house to know that the father was outside watching the house and checking who was entering and leaving.
On 12 February 2009 the Father filed an initiating application with the Federal Magistrates Court. In the application the Father gave his occupation as “unemployed”. In support of the application the Father swore an affidavit on 11 February 2009. In this affidavit the Father deposed that the child X has “medical problems” and “has had some problems at school”.
On 25 February 2009 the matter was listed before the Federal Magistrate. Her Honour made the following orders:
1. [X] born … 1999 and [Y] born … 2007 live with their father.
2. Pursuant to s. 67Q of the Family Law Act 1975, the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia are authorised and directed, with such assistance as may be required, and if necessary by force:
(a)to find and recover [X] and [Y] and to deliver them to the father at such place as the person effecting such recovery nominates; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [X] and [Y] may be found.
3. The father is to notify the court within 24 hours of [X] and [Y] being located so that the matter may be listed for hearing at short notice.
AND THE COURT NOTES THAT:
A. Mr Crabtree has left messages on the mother’s telephone number and her mother’s telephone number. If he receives a call from the mother he will notify the court with a view to having the matter urgently listed.
The Federal Magistrate observed at [13] that the Father sought a recovery order on 25 February 2009 and her Honour asked Mr Crabtree, the Father’s solicitor, to telephone the Mother to advise her that the matter was before the court, inviting her to participate, and saying that a recovery order might be issued. The Federal Magistrate said that the Mother did not take the solicitor’s calls or respond to telephone messages left on her or her relatives’ telephones. The Federal Magistrate observed at [14] that notwithstanding the messages that had been left, the Mother did not contact the Father or Mr Crabtree in the following weeks.
On 10 March 2009 the Mother commenced living in rented accommodation in L in Adelaide. The child X at that stage resumed living with the Mother and the child Y, and changed schools to L Primary School.
In the family report Dr Q said:
30. [The Mother] states that she supports herself, being in receipt of a disability pension. Since moving to South Australia on 5th February 2009 she has actively engaged the support via the Lutheran Community Care, South Australia. She has also been in contact with the Domestic Violence Unit of the South Australian Police who have subsequently referred her to Murrayland Supported Accommodation. This service is an accommodation service focussing on housing support for instances of domestic violence. Since that time she has been able to obtain accommodation through the support services, has set up a home, and established herself well in the local community and established the boys in regular school and play group. She has obtained a 12 month lease on a house in [L]. She is located close to her sister who also provides her with practical and emotional support.
The Federal Magistrate observed at [10] that the Mother explained in cross-examination that the child X began at L Primary School “with short days, on the advice of the school, given the problems that he had experienced at his previous school”.
The Federal Magistrate observed at [11] that the Father “gave unchallenged evidence that the teacher at [L] would not let [the child X] go to the toilet during class time. This resulted in [the child X] emptying his bowels into his pants on a number of occasions”.
The Federal Magistrate observed at [12]:
Against this backdrop, the mother said in an affidavit sworn on 27 April 2009 that “both children were extremely happy and settled under my care [in Adelaide]. [The child X] was doing well in school. He was making friends and becoming a more settled young man.” This is a serious misrepresentation of how [the child X] was coping in Adelaide. It leads me to consider that the mother was not a reliable witness about matters of major significance concerning her children’s well-being.
We observe that in his affidavit sworn on 24 April 2009 the Father deposed at paragraph 2(xxxv) that he “only learnt of [the Mother]’s address one week prior to the boys being collected by the Australian Federal Police”. The children were collected by the police from the care of the Mother on 25 March 2009. This means that the Father knew the Mother’s address in Adelaide from about 18 March 2009.
We also observe that during her cross-examination the Mother gave evidence that prior to the execution of the recovery order she had a telephone conversation with the Father and “we agreed – I asked him to write down what he wanted insofar as when to see them and all that sort of stuff, to sign it, send it to me, I’ll sign it and it becomes a legal document” (Transcript, 24 July 2009, p 110). The Mother also gave evidence that the Father “was on the phone with [the child X] many times” (Transcript, 24 July 2009, p 111).
However, on 24 March 2009 the Federal Magistrate made the following orders:
1. The court is satisfied that the records of Centrelink are likely to contain information in relation to [X] born … 1999 and [Y] born … 2007 and/or their mother [the Mother] who has possession of [X] and [Y].
2. Pursuant to section 67N(2) of the Family Law Act 1975 the Business Manager of Centrelink furnish forthwith to the Registrar of the Federal Magistrates Court of Australia at Melbourne such information as is contained in the records of Centrelink in relation to the address at which [X] and [Y] and their mother may be found.
3. The Registrar upon receipt of the information from Centrelink shall release the information to:
a.the Australian Federal Police for the purpose of executing the recovery order made on 25 February 2009; and
b.the father’s solicitor for the purpose of effecting service of:
i.the application filed on 12 February 2009;
ii.the affidavit sworn on 11 February 2009;
iii.the order made on 25 February 2009; and
iv.this order.
4. The father, by his solicitor, ensure that the mother is served as soon as practicable with:
a.the application filed on 12 February 2009;
b.the affidavit sworn on 11 February 2009;
c.the order made on 25 February 2009; and
d.this order.
During the hearing before the Federal Magistrate it was contended by counsel for the Father that the Father had to obtain to a location order for the purpose of locating the children (Transcript, 24 July 2009, p 138).
In any event, independently of the location order, the police ascertained the whereabouts of the children and executed the recovery order on 25 March 2009. The Federal Magistrate observed at [14] that the children were returned to the Father on that day and have lived with him in Bendigo since then while the Mother has remained in Adelaide.
We observe that the Mother deposed at paragraph 38 of her affidavit sworn on 3 April 2009 that she had been receiving the Father’s overdue bills on a constant basis and that the Father had a large debt. In his affidavit of 24 April 2009 the Father gave evidence at paragraph 2(xxxv) that on 25 March 2009 he sent mail to the Mother that included letters from Telstra, Victoria Electricity, Chrisco and Line Finance and that they were all unopened and he did “not know what the contents were”. The Father also said that he “would like to see the bills that I have been accused of sending her”.
In his affidavit of 24 April 2009 the Father gave evidence at paragraph 2(xxxv) that he has debts of less than $10,000 “which is small compared to the average person. It is the only large debt that I have and is in the process of being paid”. There was put in evidence before the Federal Magistrate a letter (Exhibit R3) from W Library dated 15 February 2004 seeking recovery of an amount of $352 with respect to lost books (Transcript, 22 July 2009, pp 18 to 19). The Father was cross-examined about a letter dated 28 January 2004 (Exhibit R4) from CL Finance with respect to a debt of $5,264.80. The Father was asked if the debt remained unpaid and he said “[n]ot paid in full” and when asked how much had been paid said “I couldn’t tell you off the top of my head” (Transcript, 22 July 2009, p 20). In cross-examination, the Father also admitted that he has a debt to the National Australia Bank “around the $8,000 mark” which he said “may have been” in respect of a credit card debt (Transcript, 22 July 2009, pp 20 to 21). Again, the Father admitted that the debt was “[n]ot paid in full” and that he did not know how much remained owing although he conceded that it would be “around about $8,000” (Transcript, 22 July 2009, p 21). Thus, according to this evidence the Father’s debts are possibly not less than approximately $13,000.00 but he does not know what the precise amount is.
On 3 April 2009 the Mother filed a response. The orders sought in the response were those relied on by the Mother at the final hearing. In support of the response the Mother swore an affidavit on 3 April 2009.
On 3 April 2009 the matter came back before the Federal Magistrate. The Mother was represented by solicitors. The Federal Magistrate made the following orders:
THE COURT ORDERS BY CONSENT THAT:
1. All extant applications be adjourned to 27 April 2009 at 2.15pm.
2. The matter be adjourned to 22 July 2009 at 10.00am for final hearing (with an estimated hearing time of two days).
THE COURT ORDERS THAT:
3. Pursuant to s 68L(2) of the Family Law Act1975, the children, [X] born … 1999 and [Y] born … 2007, be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
a.forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
b.within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon;
c.the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
d.the independent children’s lawyer prepare a minute of the orders he/she will recommend be made as final orders.
THE COURT ORDERS BY CONSENT THAT:
4. Pursuant to s 62G(2) of the Family Law Act 1975, the parties, [X] and [Y] attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia for the purposes of the preparation of a family report to be given to the court 35 days before the hearing date.
5. The family report deal with the following matters:
a.any views expressed by [X] and [Y] and any matters (such as their maturity or level of understanding) that would affect the weight that the court should place on those views;
b.the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
c.any other matters that the Family Consultant considers important to the welfare or best interests of [X] and [Y].
6. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
7. Within 7 days of being notified of the identity of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, then the party himself or herself) deliver or cause to be delivered to the Family Consultant copies of the following documents:
a.all relevant applications, responses and affidavits filed by the party in these proceedings; and
b.any intervention or restraining orders currently in force.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
8. [X] and [Y] live with their father.
9. [X] and [Y] spend time with their mother from 10.00am on 7 April 2009 to 11.00am on Friday 17 April 2009.
10. [X] and [Y] reside with their mother at [L], South Australia between 7 April 2009 and 17 April 2009.
THE COURT ORDERS BY CONSENT THAT:
11. Changeover occur at Bendigo Police Station on 7 April 2009 and at Southern Cross Railway Station on 17 April 2009.
12. Each party facilitate [X] telephoning the other party whilst in their respective care.
13. Each party be and is hereby restrained by injunction from:
a.using, ingesting or consuming, or being under the influence of, or exposing [X] and [Y] to any illicit substance whilst [X] and [Y] are in their respective care;
b.denigrating the other party to or in the hearing or presence of [X];
c.discussing these proceedings with or in the presence of [X].
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
14. The parties undertake one supervised drug screen prior to 27 April 2009, within 48 hours of the solicitors for the other party making a request for the testing to occur, and the results of such tests be forwarded forthwith, to be received by the other party’s solicitors prior to 27 April 2009.
THE COURT ORDERS BY CONSENT THAT:
15. Each party file and serve any further affidavit material upon which they intend to rely by 23 April 2009.
16. The applicant file and serve any further affidavit to be relied upon by 4:00pm on 24 June 2009.
17. The respondent file and serve any further affidavit to be relied upon by 4:00pm on 8 July 2009.
18. The independent children’s lawyer file and serve any affidavit to be relied upon by 4:00pm on 15 July 2009.
19. By 4:00pm on 20 July 2009, each party and the independent children’s lawyer file and serve an outline of case document including the following:
a.a list of the documents to be relied upon;
b.a brief chronology;
c.an outline of contentions with respect to:
i.whether the presumption of equal shared parental responsibility applies (s.61DA),
ii.the considerations relevant to equal time and substantial and significant time (s.65DAA);
iii.each of the considerations relevant to determining the best interests of [the children X and Y] (s.60CC factors);
iv.other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and
v.any other matters relevant to the decision; and
d.a statement of the precise orders sought.
20. In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
AND THE COURT NOTES THAT:
A. The father and the mother at changeover will deliver [Y]’s car seat to the other parent.
B. In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
the filing of documents; or
any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
C. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
D. Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders. (emphasis added)
In the Father’s affidavit sworn 24 April 2009 he purported to give evidence in reply to the Mother’s affidavit of 3 April 2009. On 24 April 2009 the Mother swore her second affidavit.
On 27 April 2009 the Federal Magistrate made the following orders by consent:
1. That the wife spend time with and communicate with the children [X] and [Y] as follows:
(a)On the 2009 Mother’s Day weekend from 10.00am Saturday 9th May 2009 to 7.00pm Sunday 10th May 2009 in Bendigo.
(b)By telephone at any reasonable time prior to 8.30am and between 8.00pm and 8.30pm on Monday evenings (Melbourne time).
(c)For the first week of the 2009 second term Victorian school holidays commencing 11.00am 27th June 2009 (Saturday).
(d)At such further or other times as may be agreed between the parties.
2. That for the purposes of Order 1(a) an d1(c) changeover to occur at the Bendigo Police Station.
3. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATION
That the children when travelling by car be restrained as required by law (Applicant to provide child car seat)
The Federal Magistrate observed at [16]:
A letter dated 5 May 2009 from [the child X]’s primary school in Bendigo indicated that [the child] was being appropriately dressed and prepared for school each day, had settled back into the classroom reasonably quickly and had renewed friendships from last year and was developing new ones. The letter noted that there had not yet been any temper outbursts or prolonged arguments that had been regular occurrences last year. The letter noted a growth in maturity. It said that [the child]’s brashness and high-handed dismissal of others was settling. The letter said that [the child] appeared secure and happy in his current situation and he spoke of both parents positively.
This letter appears to have been prepared for the purposes of the hearing.
On 6 and 16 May 2009 Dr Q conducted interviews and observations for the purposes of completing her report.
The Federal Magistrate observed at [15]:
[The child X]’s latest report dated June 2009 from his school in Bendigo indicated that his class behaviour was acceptable. It states that [the child] was showing greater maturity this year in relation to his attitude to school and to his classmates. It also stated that [the child] had said things to children that he had later regretted and needed to work on building bridges with them.
On 5 and 23 June 2009 the matter was before the Federal Magistrate in relation to inspection of subpoenaed material.
The family report prepared by Dr Q is dated 16 June 2009. In his affidavit of 21 July 2009 the Father deposed at paragraph 15 that he disagreed with the conclusion made by Dr Q as set out in the family report and believed that Dr Q had not placed sufficient weight on the Mother’s behaviour in removing the children from Victoria and taking them to South Australia without consultation with the Father. The Father, however, made no complaint in his affidavit about any matter of history referred to by Dr Q in her report.
In the family report Dr Q at paragraph 28 said that: “[The Mother] presented as a caring, responsible and articulate woman” and that “[o]bservations and interview would suggest that she has a strong emotional connection and bonding with both boys”. What Dr Q said about the Mother was corroborated by the Father. As to the Father, Dr Q said:
31. [The Father] is a man who presents as an extremely engaging and personable individual. He reports that he has a number of interests and entrepreneurial ideas, and claimed that he had lots of contacts in the music industry, had been engaged with many bands, band management, working as a DJ, and is currently working on a revolutionary website that will enable him to sell advertising to [Sports] Clubs. [The Father] appeared to go to some effort to convince the writer that he was well connected to important celebrities and individuals.
32. He stated that when the parties met he was working as a stand up comedian and performing in a band, and subsequently began working as a manager for bands.
33. It would appear to the writer that despite the fact that [the Father] is able to recite the names of many well known individuals, it nonetheless cannot be ignored that he has had extremely transient work, with a very poor long term work history. His capacity to provide financially for his family has necessitated frequent and significant periods of time, indeed the majority of time since his children have been born, to reside in circumstances that would be considered inadequate such as living in the back of a van, in tents, or in trailers.
34. It would appear that despite all his best intentions, [the Father] appears to be someone with expansive dreams that do little to assist in meeting the day to day necessities of his family. His ideas for money making schemes appear, to date, to not eventuate into providing any form of significant income or stability for his family.
35. It is also apparent that over time [the Father] has, it would appear, put his desires and dreams above the needs of his family, for example it is noted that whilst maybe not ideal, the circumstances in which the family were living prior to the Sydney Olympic games did in fact provide some stability and was one of the few times that the family had a stable residence. However, [the Father]’s dream was to work as a volunteer for the Olympic Games and so the entire family were uprooted, including his wife and children, to live in the back of a van in order that [the Father] could pursue his dream of working at the Olympic Games.
36. [The Father] does not appear to understand or accept that lie has failed to put the needs of his family before his own wishes, or that in any way he has failed to meet his parental obligations. (emphasis added)
In passing, we observe that it was put to the Father in cross-examination: “You’ve had a very, very chequered work history, haven’t you? --- It depends if you mean by employment or self employment”. The Father went on to suggest that he had a fairly good employment history in the entertainment industry (Transcript, 22 July 2009, p 9).
In the family report Dr Q also said:
58. The primary concern of the writer is that with respect to stability of living environment, it is evident that [the Father] has not, over an extended period of time, been able to provide [the Mother] or the children with stable, secure accommodation. Considering that the best predictor of future behaviour is past behaviour, the writer is extremely concerned about the capacity of leaving the children in the care of [the Father], given his propensity to require the family unit to live in substandard accommodation and transient accommodation.
We observe that it was put to the Father in cross-examination that he told Dr Q that he “had a great network of people, a very wide network of people on whom [he] could rely for assistance” and he said: “No, I don’t believe I said that at all” (Transcript, 22 July 2009, p 25). In his affidavit of 24 April 2009 at paragraph 2(xxviii) the Father deposed:
I do not require any financial support from family. I have much support from friends and neighbours and extended family. I have emotional support from friends that I have had for over 35 years. I have support from many church goers in Bendigo as well as people in different community groups. I do not know the work that [the Mother] will be returning to as she has never had a job since I have known her. To the best of my knowledge she has worked one week as a temp at an insurance company and worked for a while at [a grocery store] as a teenager. [The Mother] has also research and built approximately 200 pages of my website after I told her what to do. [The Mother] is not required to work until [the child Y] goes to school anyway but on a disability pension she is not required to work at all. [The Mother] has always stated that she does not want to get a job and she does not have any skills or confidence to do so.
The children spent time with the Mother in Adelaide in the June/July 2009 school holidays. On 4 July 2009 the Mother returned the children by bus to Bendigo. The Mother was collected by the Father’s sister from a shopping centre at about 5.30pm as she was staying at her residence overnight. The Mother gave extensive evidence in her affidavit sworn on 10 July 2009 about what happened. At about 6.00pm that evening, the Mother observed the Father driving past the shop premises and she could see the child X. About 5 or 10 minutes later the Father, again, drove past the premises in the other direction and he also did this a short time later. The Mother was later informed that the Father’s nephew, who is the son of his sister, received a message from the Father that he had a statutory declaration that his nephew had lied in court and that he knew the Mother was staying at the residence of the Father’s sister. The Mother gave evidence that approximately 30 minutes later she observed the Father standing directly outside the premises taking photographs. The police were called.
The Federal Magistrate said:
129. … After delivering [the children X and Y] to their father at about 5pm, the mother went to his sister [Ms K]’s house to stay the night. [Ms K] lives behind her [business]. The mother and [Ms K] were in the [premises] at about 6pm when they saw the father drive past. They saw [the child X] in the car.
130. The mother says that the husband drove past again after five or 10 minutes and drove past again after another five or 10 minutes. The mother said that the father left a message on the telephone of [Ms K]’s son [S] saying that the father knew [S] had lied in court and knew that the mother was staying at [Ms K]’s and if they thought they were going to help the mother with the family law proceedings they should think again.
131. The mother said that about 30 minutes later, she saw the father outside the [premises] taking photos of her and [Ms K]. The mother said that [Ms K] called the police. The mother said that [Ms K]’s husband [Mr K] went outside to confront the father. The mother said that the father jumped on [Mr K]’s foot and [Mr K] retaliated by grabbing the father’s shirt.
132. The mother said at that point the police happened to be driving past and they stopped and intervened in the altercation. The mother said that about half an hour later, the father returned to the children who had been left alone in the car in the dark.
133. The father said that after collecting the children at 5pm he had driven past his sister’s [business] because it was on the way. He said [the child X] noticed that his mother was in there. The father said that he took [the children X and Y] home, gave them the dinner, collected someone to look after them and then returned with that person and the children to the [business]. He said he was only outside the [business] for a short time. The father did not identify the person who he claimed was looking after the children and no one else has mentioned that person.
134. The mother provided a police report which said that a police officer happened to witness a verbal argument between two males on the footpath. The police officer said that no offences were investigated but family incident reports were submitted identifying all parties.
135. The father did not explain why he felt it was necessary to take photographs of the mother and [Ms K]. Again, it was disturbing behaviour. I do not accept that the father did in fact have another adult present to supervise the children during the incident on 4 July 2009. No one else, including the police officer, mentioned any such person. I accept the mother’s evidence that the father left [the children X and Y] alone in a car in the dark for some time so that he could take photographs of their mother. This is poor parenting.
136. The mother’s counsel urged the court to accept that the father’s sole motivation in wanting [the children X and Y] to return to the Bendigo area was to force the mother to return to the father as his wife. The father denied that. It is well known that, at the time of separation, the person who leaves the relationship is generally much further along the process of emotionally dealing with the separation than the person who is left. Some of the father’s disturbing behaviour can perhaps be understood in that light.
137. That is not to say that it is acceptable for the father to lurk outside the places where the mother is staying. It is completely unacceptable. While the father may have had difficulty coming to terms with his separation from the mother, I doubt that seeking a reconciliation was his sole motivation in wanting [the children X and Y] to live in Bendigo. In any event, the father’s motivation is not the critical issue. The critical issue is the best interests of the children.
On 10 July 2009 the Mother swore her third affidavit. The Father swore a further affidavit on 21 July 2009 in which he gave evidence in reply to what the Mother deposed in her affidavit of 24 April 2009. We observe that there is a page missing from the Father’s affidavit, namely, page 5.
On 22 July 2009 the hearing of the applications for final parenting orders commenced before the Federal Magistrate. The hearing proceeded for three days on 22, 23 and 24 July and at the conclusion of the hearing her Honour reserved judgment.
At the time of the hearing in July 2009 the Father was still unemployed and was in receipt of a “single parenting payment” (Transcript, 22 July 2009, p 68). The Mother was in receipt of a disability pension. The Federal Magistrate observed at [98]:
The trial in this matter finished on a Friday afternoon. The court invited the mother to seek time with [the children X and Y] over the weekend. She declined the offer on the basis that she could not afford it.
On 13 August 2009 the Federal Magistrate pronounced judgment.
On 10 September 2009 the Mother filed a notice of appeal. At the commencement of the hearing before us the Mother sought, without objection by the Father, to rely upon an amended notice of appeal.
On 6 May 2010 the appeal was listed for hearing before the Full Court. On that day the hearing of appeal did not proceed and was adjourned by consent.
The Reasons Of The Federal Magistrate
At the commencement of her reasons under the heading “Introduction” the Federal Magistrate made a number of observations including at [3]:
… The parents have very limited funds to pay for travel between Bendigo and Adelaide. The father is in receipt of a single parenting payment and the mother is in receipt of a disability pension. She has arthritis and back pain. The father said that if the children lived in Adelaide he would be unlikely to move there. The mother said that if the children lived in Bendigo, she “would have to” return to Bendigo.
The Federal Magistrate also observed at [4]:
In her first affidavit sworn in these proceedings, on 3 April 2009, the mother said that the father had never been physically abusive towards her. However, in an affidavit sworn on 10 July 2009, the mother said that, while living with the father, she was emotionally strained from physical and other abuse. When cross-examined about this, the mother said that she had only been given two hours to prepare her affidavit. She confirmed that she had not meant to say physical abuse and she confirmed that the father had not been physically violent towards her.
We observe that in her first affidavit sworn on 3 April 2009 the Mother said at paragraph 24 that: “[The Father] was never physically abusive towards me”. In her second affidavit sworn on 24 April 2009 the Mother said at paragraph 10 that the Father “was verbally abusive towards” her. The Mother gave no evidence in this affidavit about physical abuse. We also observe that the Mother made no complaint to Dr Q about physical abuse. In her third affidavit sworn on 10 July 2009 the Mother did make an allegation against the Father of physical violence. We have also considered what the Mother said during her cross-examination and it is apparent to us that what the Mother said in her affidavit of 10 July 2009 about physical abuse was a mistake. Before the Mother was taken to what was in the affidavit her counsel said that there was no mention of physical abuse and the Mother said that the Father “never physically harmed me” (Transcript, 24 July 2009, pp 96 to 97).
The Federal Magistrate at [5] to [16] referred to matters of history, after the separation of the parties up to May 2009 and then commenced at [17] to deal with the family report.
The Federal Magistrate observed at [17] that Dr Q noted that the child X “presented as an assertive and self assured young man who had advanced verbal skills but very poor social interaction skills. [Dr Q] expressed the view that [the child X] may have Asperger’s Syndrome, but acknowledged that she had not conducted the appropriate tests. Her view was somewhat speculative”. For reasons we will later explain, her Honour did not appear to understand the point that Dr Q was seeking to make.
The Federal Magistrate observed at [18] that in relation to the child Y:
[Dr Q] noted that he was an alert child who displayed reluctance about being separated from both his mother and his father. During the observation session, [Dr Q] reported that [the child Y] was initially excited by his contact with his mother but soon lost interest in her in favour of activities within the room. [Dr Q] considered that [the child Y] displayed no disorders of attachment and appeared to be securely attached to his mother and positively attached to his father.
The Federal Magistrate then observed at [19]: “[Dr Q] was particularly concerned about the family’s standard of accommodation. Largely for that reason, it seems, she recommended that [the children X and Y] live with their mother” and then repeated what Dr Q said in paragraphs 33, 35 and 58 of her report.
The Federal Magistrate said:
20. The wife alleged that the family home in Bendigo was “a very unstable and dangerous house”. She said there were electrical issues with the house, such as flickering lights, and she said that it leaked when it rained. The father conceded that there had been problems with three lights. He said two of them were caused by inferior energy saving globes which had been replaced. He said that he had arranged with the landlord for an electrician to check the other light. The father conceded that there had been leaks in the house on three occasions during very heavy rain. He said that one of the leaks had occurred in the bathroom in the first month that they lived in the property. He said the problem had not occurred since. The father said there had been leaks in the gymnasium near a window but not near any electrical fittings and there had also been a leak in the kitchen. The father said that he had raised the issue with the owner but it was difficult to address because it had not rained heavily enough for some time to be able to check for leaks. This evidence was unchallenged and I accept it.
21. The mother acknowledged that she had signed a condition report for the house on 8 December 2007 at the commencement of their lease. The mother indicated in that report that all aspects of the house were in good condition, including light fittings, power points and the air-conditioning unit. The mother identified photographs of the outside and inside of the house. They showed a double fronted, Victorian brick house that appeared to be clean, reasonably tidy and appropriately furnished and fitted out. The photographs disclosed no obvious dangers or inadequacies. I do not accept that the family home in Bendigo is substandard accommodation or presents a danger to the children.
In the written summary of argument of the Mother filed on 1 April 2010 the grounds of appeal were grouped into a number of categories. However, not all of the grounds of appeal were explicitly addressed in the written summary of argument, namely grounds 5, 18 and 24. Nevertheless, we will address the issues raised in those grounds in our discussion below.
Discussion
Introduction
As we have already observed, during the hearing before us a number of important admissions were made on behalf of the Father and we were asked to make certain orders by consent. It was accepted by the Father that orders 2 and 4 should be discharged and perhaps also order 5.
Order 2 made by the Federal Magistrate provided that from 24 January 2010, the Mother be restrained from living more than 40 kilometres from M Primary School in Bendigo without the consent in writing of the Father. The complaints by the Mother about this order were addressed in grounds 25, 26, 27 and 28 of the amended notice of appeal.
The Mother is still residing in Adelaide and it was accepted by the Father that the Mother will remain in Adelaide. In other words, the Mother did not comply with the intention of order 2 in that before 24 January 2010 she did not commence living in Bendigo. The Father, however, has not sought to enforce the order and does not propose to do so. Before us in discussion it was accepted by counsel for the Father that it would be difficult for the Father to enforce this order. We agree with this admission. There are a number of reasons why order 2 could not be enforced including the terms of the order. Further, notwithstanding what was said by Bryant CJ and Warnick J in Sampson & Harnett, we do not accept that what their Honours said would support an order in the terms of order 2 or an order that would have the effect that the Mother was required to reside in Bendigo and could not move elsewhere without the consent in writing of the Father.
Order 4 made by the Federal Magistrate provided a regime for time to be spent by the children with the Mother after she returned to the Bendigo area. Order 5 provided a regime for time to be spent by the children with the Mother before she returned to the Bendigo area.
Obviously, order 4 had to be discharged once it was accepted that order 2 had to be discharged and that the Mother would remain in Adelaide. Order 4 provided a regime that became redundant. So also once orders 2 and 4 were discharged then order 5 had to be discharged because it provided a regime for a limited period of time, namely, until no later than 24 January 2010. Order 5 also became redundant. The consequence of the discharge of orders 2, 4 and 5 was that there was no arrangement for the children to spend time with the Mother.
On the basis that the Father continues to reside in Bendigo and the Mother continues to reside in Adelaide, there could never be an equal or substantial and significant arrangement, which was the foundation of the judgment of the Federal Magistrate. In all the circumstances, it became necessary for a redetermination of the amount of time the children spend with both parents.
There was a further important admission by the Father, which we also agree was appropriate to be made, namely, that the Federal Magistrate failed to consider s 65DAA(1)(b) and (2)(d) of the Act. In Collu & Rinaldo the Full Court observed at paragraph 339 that s 65DAA of the Act requires a court to deal with two issues, namely, whether a child spending equal or substantial and significant time with each parent is in the child’s best interests; and whether a child spending equal or substantial and significant time with each parent is reasonably practicable. As the High Court made clear in MRR v GR at paragraph 15 the second question “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent” and “requires a practical assessment of whether equal time parenting is feasible”.
In this case, the Federal Magistrate expressed the view that an equal and substantial and significant arrangement was desirable but failed to make a practical assessment of whether such arrangements were feasible. Her Honour failed to consider the circumstances of the Mother if she had to reside Bendigo. For example, there was no consideration of where the Mother would live, what support she would have and other practical considerations. The Mother would also lose the significant benefit of the support of members of the maternal family.
For these brief reasons, we allowed the appeal and made orders that require a redetermination of the applications for final orders. Although it is therefore not necessary for us to consider a number of the grounds of appeal contended for by the Mother, we shall briefly deal with some of the categories of complaint.
Grounds 3, 4, 6, 7, 8 and 9
The first category of complaint identified in the written summary of argument of the Mother relates to grounds 3, 4, 6, 7, 8 and 9.
On behalf of the Mother it was submitted that the Federal Magistrate was in error in failing to give significant weight to the recommendations of Dr Q. As we have observed, her Honour rejected the opinion of Dr Q for two reasons. First, because her Honour was of the opinion that Dr Q was wrong in relation to the history of accommodation of the family. Second, because in the family report Dr Q failed to set out or deal with seriatim each of the relevant statutory considerations.
On behalf of the Father it was submitted that the Federal Magistrate determined that she could not give “significant weight to the recommendations” of Dr Q for four reasons. First, because Dr Q misapprehended the parties’ true accommodation situation in a context where Dr Q expressed the view that “the accommodation issue was a ‘primary concern’ for her”. Second, the family report “did not in terms specifically address any of the matters that the legislature requires the court to consider in ascertaining the best interests of the children”. Third, the “family report did not address such issues as equal time or substantial and significant time”. Fourth, the “family report may have focused on the question of accommodation and paid no attention to all the other matters that must be considered in ascertaining the best interests of children”. It was submitted that her Honour spelt out, in considerable detail, the bases for the first and the fourth of these reasons and that the second and third reasons are “self evident on the face of the Family Report”.
We observe that there was no issue about the credibility of Dr Q or her expertise. As we have observed, the Federal Magistrate was of the opinion at [85] that Dr Q was “under a misapprehension about the chronology” because of deliberate misrepresentation by the Mother.
As to the first reason given by the Federal Magistrate for rejecting the opinions of Dr Q, on behalf of the Mother it was submitted that what Dr Q said in the family report at paragraphs 5, 14 to 22, 33, 35, 53 and 58 concerning the family’s accommodation and places and condition of residence prior to separation was substantially correct. It was submitted that Dr Q had been informed as to the chronology, places and conditions of accommodation of the family by the contents of the affidavit of the Mother, sworn on 3 April 2009 and the affidavit of the Father, sworn on 24 April 2009. Dr Q had also interviewed both the Mother and the Father.
In our view, there is considerable merit in this complaint by the Mother. The Federal Magistrate never described the error(s) it was contended Dr Q made about the chronology of past events. Further, the alleged deliberate misrepresentations by the Mother were never particularised. We have set out in some detail the relevant background including where the family lived and why and what occupations the Father pursued and courses he undertook. In our view, there is considerable support for the concerns raised by Dr Q about the transient lifestyle experienced by the family and its effect on the children. We have already referred to the evidence given by Dr Q, during cross-examination by counsel for the Father, that it is not a matter of whether the family lived in a van or a house but about the decisions made in terms of transience and what motivated those decisions (Transcript, 24 July 2009, p 134). It is about the lifestyle the Father has chosen and what the family has experienced as a result. In our view, there are very sound reasons for why Dr Q had concerns about the transience of the Father.
Another related matter, which the Federal Magistrate appears to have failed to consider, relates to the special needs of the child X. In the family report Dr Q said at paragraph 41:
There is no evidence to the writer that in previous assessments any pervasive developmental or disorders such as Autism Spectrum Disorder have been considered, however due to his behavioural presentation it is the writer’s opinion that ongoing assessment and consideration of Autism Spectrum Disorder, possibly Aspergers Syndrome, should be considered in the future. Any diagnosis however, should not been [sic] too enthusiastically embraced without remembering that many of social difficulties could equally be due to lack of stable and appropriate developmental environments. One must wonder how a child under 5 years of age learns concepts of boundaries, space and privacy when living in confined spaces such as a tent or van and without exposure to peer interactions.
In cross-examination by counsel for the Mother, Dr Q said (Transcript, 24 July 2009, p 148):
[COUNSEL]:With what you know about [the child X] and the background, does that send up any flags to you?
[DR Q]: --- I mean, I think, as I said before, that my first paragraph in relation to [the child X] was a summary of all of the behaviours that have been reported from the documents I had available and from discussion with both parents, and I am very concerned about his behaviour, and I think it is a huge red flag that, irrespective of what happens with him in the future, his life to date has created a very disturbed little boy who needs a lot of intervention and some serious long-term stability and security in a good home environment. And these behaviours don’t develop for no reason at all, and I’m very concerned about his – he is clearly a very intelligent little boy; I think he is probably more developed than his peers in that respect, but with respect to emotional development and social skills, he has a very strange presentation. He really struggles with social interaction and if it’s not sorted out very quickly, we’re going to have a very disturbed young man on our hands, I think. That’s a concern for me.
[COUNSEL]:Did you contemplate the possibility that there may be an Asperger syndrome ... underlying problem here?
[DR Q]:-- I did, and I flagged that in the report, and I know that that hasn’t necessarily been the conclusion from evaluations in the past, and I’m loath to say that that’s the case, based on the fact that, first of all, I didn’t do the range of assessment required to make that assumption; also, his age, I think it would be a mistake to start placing labels on children at his age. But I think, also, if you look at, in terms of the background that’s described by both of the parties, there had been significant periods of time in his very early development where he didn’t have a great deal of social contact and social interaction, and so what we’re seeing may well be the result of that. So I think that, you know, over the next few years, time will tell as to whether it’s a diagnosable issue that we’re looking at, or whether it really is about development issue that can be rectified by a much more stable social environment.
[COUNSEL]: In regard to development, do you regard contact with cousins and extended family as important?
[DR Q]: --- I mean, I think it obviously is, and I think, in some ways, particularly for children like [the child X] where there are very difficult – when he clearly struggles with social relationships – that I think that often a family member’s cousins and regular contact to children that are within the extended family unit or close friends are often more tolerant and provide more practical examples in practice than there now appears in school settings. So I think the more exposure that he has to any of those kind of environments where he can practise social skills and also see regular role models in a family environment, because it’s not just about how to behave at school and how to relate to kids at school; it’s about how to behave and how to relate to people in the real world, which is at home as well.
In summary, Dr Q explained that the concern was about the lifestyle of the family; what the family had experienced and the effect on family and in particular the child X who Dr Q described as a “very disturbed little boy who needs a lot of intervention and some serious long-term stability and security in a good home environment”. The Federal Magistrate did not consider this evidence. In summary, in our view, her Honour failed to consider all of the evidence about the transient lifestyle, its effect on the children X and Y and why it is of concern for the future.
As to the second reason why the Federal Magistrate gave no weight to the opinions of Dr Q, namely, because Dr Q “did not in terms specifically address any of the matters that the legislature requires the court to consider in ascertaining the best interests of the children”, in our view, this contention is without any foundation.
In our view, the cross-examination of Dr Q about her compliance with the terms of the order for the preparation of a family report and her consideration of the statutory provisions was unfortunate (Transcript, 24 July 2009, pp 135 to 137). The approach that was taken at the trial by counsel for the Father as to the role and tasks to be undertaken by Dr Q appears to be persisted with before us. For example, in the written submissions of the Father it is said at a paragraph 17(a) that Dr Q “was unable to explain what her role was and, later, misapprehended it as making the decision as to what was in the best interests of the children”. It is not clear to us what this means. However, in support of this statement, reliance was placed on the following exchange during the cross-examination of Dr Q by counsel for the Father (Transcript, 24 July 2009, p 135):
[COUNSEL]:Yes, we’ll come to that. You sound like you want to advocate for the mother. I didn’t ask you about that?
[DR Q]: No. I’m not advocating for either party at all.
[COUNSEL]: But I didn’t ask?
[DR Q]: I think that was evident in the report, that I’m saying ---
[COUNSEL]:I’m coming to that, don’t worry. But I didn’t ask you about that. In regard to – the orders that were made by the court, as you know, were very specific in regard to your role?
[DR Q]: Yes.
[COUNSEL]: Yes. And they directed you to specifically consider matters section 60CC, 61DA and 65DAA?
[DR Q]: Yes.
[COUNSEL]: Yes. Which of those matters did you consider? ---
[DR Q]: I considered all of those matters, obviously, and also ---
[COUNSEL]: Which ones in particular? ---
[DR Q]: --- in addition, you’ll notice – I get a request for a report from Dispute Resolution, and in addition I was asked to examine fulfilment of parental responsibility issues of psychiatric illness, the relationship between the parents, the relationships between the children, family violence --- That’s – ma’am, I --- ? --- child – and child abuse.
[COUNSEL]: That is not --- wasn’t what I asked you. Which matters, say, under section 60CC did you consider?
[DR Q]: --- Well, if you can provide me 60 – the sections, I’ll respond to that question.
[COUNSEL]: Are you – can’t – you just haven’t got your notes with you, though, and you can’t tell us?
[DR Q]: --- In every assessment, the framework of the assessment and my responsibility as someone appointed under the legislation is to examine the matters in the Act. I don’t have a copy of the – of those sections ---
We have considered the evidence of Dr Q, both in the family report and during her oral examination, and are of the view that Dr Q complied with the order and did all that she was required to do. There may be disagreement about the opinions expressed by Dr Q but that is a separate issue.
In our view, the cross-examination of Dr Q, and the discussion that occurred with the Federal Magistrate during the cross-examination, appears to misunderstand the role of the family consultant. Given the absence of any detailed submissions about this topic, we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court. The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s 80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819: “there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities”.
The Federal Magistrate was obliged to consider each of the relevant statutory considerations and, unfortunately, in this case she did not complete that task. Dr Q was asked to prepare a report that dealt with any views expressed by the children X and Y; the matters set out in ss 60CC, 61DA and 65DAA of the Act; and any other matters that Dr Q considered important to the welfare or best interests of the children. However, Dr Q did not have the same obligation as her Honour. In our view, Dr Q was not required to consider each and every one of the relevant provisions of Pt VII of the Act but only those matters she considered were relevant to the best interests of the children.
If the Federal Magistrate and counsel for the Father were not satisfied with Dr Q’s statement that she had regard globally to all relevant considerations, there was adequate opportunity for Dr Q to be cross-examined as to precisely how each consideration was taken into account by her in the formulation of her opinion. As far as the trial is concerned, this issue demonstrates how unfortunate it was that the earlier order which requested the appointment of an Independent Children’s Lawyer was not satisfied by Victoria Legal Aid. Had an Independent Children’s Lawyer been appointed, we expect that he or she would have remedied any alleged absence of expert evidence in cross-examination of Dr Q which, necessarily, would have followed the cross-examination of her on behalf of the parties.
In any event, on behalf of the Mother it was submitted, and we agree, Dr Q did consider a number of matters and not only the issue of the transient lifestyle of the family. Reference was made in the written submissions of the Mother to various parts of the family report in which Dr Q discussed a number of relevant matters. In our view, it is only necessary to look at what Dr Q said at paragraphs 50 to 60 of the family report under the heading of “Evaluation” to observe that Dr Q considered a number of important matters. We observe that Dr Q said:
59. Clearly the distance between the two properties being South Australia and Victoria is a major impediment to the children spending significant and substantial time with both parties. Therefore, consideration for Parenting Orders must be on the basis of the children living with the parent who is best able to meet their current developmental needs, while sustaining a relationship by spending as much time with the non residential parent as possibly able.
60. Consequently, given the age of the children, and the fact that until the most recent Recovery Order, [the Mother] has been the primary care giver, and the unique developmental needs of [the child X], it would appear that the parent most able to currently meet the developmental needs of the children would be [the Mother].
It appears to us that her Honour had no regard to what Dr Q said.
On behalf of the Mother, it was also submitted that the Federal Magistrate fell into error by failing to take into consideration that Dr Q had tested the children and found that they derived greater significant emotional and social support from the Mother than from the Father. Dr Q said:
46. It is evident from psychological testing conducted with [the child X] that he derives a much greater sense of support and security in the company of [the Mother]. He attributes a much greater sense of faith in her capacity to deal with his problems, and provide him with emotional comfort than his father. He also greatly appreciates the stability of the new residence in South Australia, and whilst clearly misses his father, he has derived a great deal of stability, social and emotional support from the new residential situation in South Australia.
…
50. … What is evident is that given both children’s developmental ages, special needs, and observations at interview it would appear that they derive greater significant emotional and social support from [the Mother] than they do from [the Father] at this point in time. This is not unexpected given the developmental stages of the children.
None of these important matters were addressed by the Federal Magistrate.
In conclusion, we are persuaded that the Federal Magistrate was in error in relation to the reasons she gave for rejecting the opinions of the family consultant. Her Honour also failed to give adequate reasons for rejecting the opinions of the family consultant. Further, her Honour failed to consider a number of important matters that were dealt with by the family consultant.
In passing, we observe that in the written submissions to us on behalf of the Father it was submitted that Dr Q at paragraph 46 of the family report referred to “psychological testing conducted with [the child X]” in aid of a significant conclusion drawn by her. It was submitted that given that Dr Q “would expect readers of her report to place great weight on such testing, it is remarkable that there was no mention of it in her list of interviews, no mention of it elsewhere in her Family Report, no description of the nature of the tests undertaken, nothing on which a judgment on the efficacy of such tests can be based and her explanation in cross-examination was so unconvincing”. It was also submitted that at page 2 of the family report Dr Q described the attendance of the child X upon her as “Interview/observation” and that it would have been open to the Federal Magistrate “to conclude that the so-called psychological testing was no more than the interviewing and observation of a party or child by a person qualified as a psychologist”.
These are remarkable submissions that appear to be based on the following exchange during the cross-examination of Dr Q by counsel for the Father (Transcript, 24 July 2009, p 145):
[FATHER’S COUNSEL]: Well, I have got that, and that’s why I’m troubled by your report there, because one – I’m not sure where you brief was to psychologically test this child, but – and it’s simply at paragraph 46 where you certainly get – a flag go up that you have psychologically tested him, but there’s no notes, we have no idea what you have done there. No idea at all what testing procedures or anything you have done in regard to that child. Moreover, did you seek the parent’s consent to do it?
[DR Q]: My mandate is about ---
[FATHER’S COUNSEL]: No. Did you seek either of the parents’ consent to psychologically test their son? ---
[DR Q]: My mandate, as I was ---
[FATHER’S COUNSEL]: Is that a no?
[MOTHER’S COUNSEL]: I find this question ---
[HER HONOUR]: Look, just answer the question.
[MOTHER’S COUNSEL]: --- unfair, your Honour.
[HER HONOUR]: If the answer’s no, just say so? ---
[DR Q]: No, I’m not – no.
Grounds 1, 2, 11, 12, 15, 20 and 21
The second category of complaint identified in the written summary of argument of the Mother relates to grounds 1, 2, 11, 12, 15, 20 and 21.
It was submitted on behalf of the Mother that the Federal Magistrate found that the Mother was an unreliable witness and that this finding was wrong and resulted in findings and orders prejudicial to the Mother. For example, it was submitted that at [86] to [88], her Honour found, on the basis of her perception of the Mother’s lack of credit, that the Mother would not facilitate and encourage a close and continuing relationship between the children and the Father. It was submitted that her Honour’s “comments concerning the Mother that, ‘she would also do well to take her own advice and think about what [the children X and Y] would want rather than what she wants’ was wholly unwarranted”, particularly when account is taken of all the evidence in respect of the Mother’s concern for the children.
In our view, it is clear from the reasons for judgment of the Federal Magistrate that she formed a very unfavourable view of the Mother. On behalf of the Mother, it was submitted that the main findings of unreliability were stated by her Honour at [12], [34], [56], [71] to [73] and [85]. We do not propose to deal with each of the complaints by the Mother. We have already described some of the findings by her Honour about the credit of the Mother such as her alleged serious misrepresentations to Dr Q. However, there is one important topic.
The Federal Magistrate found at [12] that the Mother had seriously misrepresented in her affidavit that the children were extremely happy and settled under her care in Adelaide and that the child X was doing well in school and was becoming settled. On behalf of the Mother it was submitted that her Honour’s finding was unduly critical and was wrong. It was submitted that the Mother’s claim was made after the child X had been moved from his grandmother’s care to the Mother’s care and after he had been moved from the W Primary School to L Primary School. It was submitted that it was while the child X was with the grandmother and was attending W Primary School that the child displayed particularly disturbing behaviour.
On behalf of the Mother it was submitted that the only evidence of disturbed behaviour by the child X at L Primary School was unsupported evidence by the Father as to what the child had told him. Her Honour commented at [11] that the evidence had not been challenged. Her Honour, however, failed to observe that the Mother’s evidence of how the child X had coped at L Primary School had not been challenged.
On behalf of the Mother it was submitted that when making her finding of the Mother’s unreliability in respect to the child X, the Federal Magistrate should have, but failed to take into consideration that the child X had manifested worrying social behaviour and anger over a number of years, that the Mother had sought help to deal with those matters and that Dr Q had referred to those issues in her report. It is also another example of the failure by her Honour to consider a number of important matters in the report of the family consultant.
In conclusion, we accept the submissions on behalf of the Mother. We are persuaded that the Federal Magistrate was in error in relation to a number of the topics which apparently her Honour relied upon in forming a view about the credibility of the Mother. Further, consideration of what her Honour said or failed to say about some of the matters relied upon, such as what we have outlined above, persuades us that in a number of respects her Honour failed to address the evidence, gave weight to extraneous matters and failed to give any or any adequate weight to a number of clearly relevant matters.
Ground 10
The third category of complaint identified in the written summary of argument relates to ground 10 in which it is contended that the Federal Magistrate “erred in law in assessing the Father’s provision for his family as not amounting to economic abuse”. Further, that “the correct test was whether the poor provision was a factor by which to determine what was in the best interests of the children”.
We do not propose to repeat the matters relied upon in support of this ground. They all relate to the family’s transient lifestyle and the failure by the Father to make adequate provision for his family. We accept that the Federal Magistrate was entitled to come to the conclusion that it did not amount to economic abuse. However, we have already observed that, in our view, her Honour failed to adequately consider the transient lifestyle; the behaviour of the Father and the opinions of Dr Q.
Ground 13
The fourth category of complaint identified in the written summary of argument is ground 13 where it is contended that the “Federal Magistrate wrongly failed to find that it would be in the best interests of [the children X and Y] to live in Adelaide because of the presence there of extended family”.
It was submitted on behalf of the Mother that the Federal Magistrate at [109] to [111] dealt with the question of the emotional and financial support which the Mother would receive from her family in Adelaide. It was submitted that her Honour found that the Mother was given emotional support by her family in Adelaide and that such support would better enable the Mother to fulfil the children’s needs. However, her Honour avoided applying those findings as required under s 60CC(3)(f) of the Act by finding that the extended family could provide the emotional support to the Mother if she resided in Bendigo. It was submitted that that finding was unreasonable and was not supported by any evidence. We agree with the submission of the Mother. We have already made an observation about what her Honour said in relation to the support the Mother could receive from her family if she lived in Bendigo
Grounds 14 and 21
The fifth category of complaint identified in the written summary of argument relates to grounds 14 and 21.
On behalf of the Mother it was submitted that the finding by the Federal Magistrate at [82] that the Mother would not facilitate a close and continuing relationship between the children and the Father was wrong. It was submitted that her Honour was entitled to be critical of the Mother’s conduct in removing the children from Bendigo and relocating with them to Adelaide without the Father’s consent. It was submitted that her Honour however gave excessive weight to this action by the Mother, and failed to give sufficient weight to the Mother’s written assurance to the Father that she would not prevent him from seeing the children. It was submitted that this assurance was made on the date when the Mother departed with the children and before commencement of legal proceedings had been contemplated by her.
It was submitted on behalf of the Mother that the Federal Magistrate also failed to take into consideration the Mother’s oral evidence that she considered it essential for children to have a relationship with the Father. Furthermore, that her Honour also failed to take into consideration that the Father was aware that the Mother intended to leave him and that she wished to relocate to Adelaide and that the Father was aware of where the maternal grandmother and maternal sister lived in Adelaide.
We agree with these complaints by the Mother. They are further examples of the failure by the Federal Magistrate to consider all of the evidence.
We are also of the view that there is substance in the complaint of the Mother that as a result of her removing the children without the Father’s consent, the Federal Magistrate formed a view about her and thereafter nothing put on behalf of the Mother dissuaded her Honour from this view. It was submitted, and we accept, that her Honour’s view of the Mother’s unreliability “permeated” the reasons for judgment.
Grounds 16, 17, 19, 22 and 23
The sixth category of complaint identified in the written summary of argument relates to grounds 16, 17, 19, 22 and 23.
In the written summary of argument of the Mother it was stated that the Mother relied on grounds 16, 17, 19, 22 and 23 and Counsel would make oral submissions in respect of those issues. It was, however, submitted that the Federal Magistrate erred in failing to consider the best interests of the child Y, separately from the best interests of the child X. It was submitted that the age of the child Y and the fact that no issues concerning his behaviour while he lived with the Mother in Adelaide were referred to and, also, the opinion and recommendations of Dr Q, required that her Honour give greater consideration than she did to the question of whether the child Y should live with the Mother in Adelaide. We agree with this submission.
Conclusion
For the above reasons we allowed the appeal and made an order that the matter be remitted for redetermination by a Federal Magistrate other than the Federal Magistrate whose judgment is the subject of this appeal.
We are also of the view that there is no reason why the family report prepared by Dr Q would not be admissible at the rehearing and an updated report prepared by Dr Q or by another family consultant. It will be a matter for the trial judge.
We also observe that this is an appropriate case for the appointment of an Independent Children’s Lawyer. If, however, this cannot happen in the Federal Magistrates Court then it follows that it is an appropriate matter to be heard in the Family Court and the proceedings should be transferred from the Federal Magistrates Court.
Costs
The Mother sought an order that the Father pay her costs of the appeal including her costs of the adjourned hearing before the Full Court on 6 May 2010. The application of the Mother was opposed by the Father who sought an order that both parties be granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) both in respect of the appeal and of the rehearing.
We were informed that the hearing before the Full Court on 6 May 2010 was vacated because counsel for the Father contended that he had insufficient time to prepare for the hearing. We were also told by counsel for the Father who appeared before us, that this was because “there were problems with getting a decision from Victoria Legal Aid for the aiding of the appeal” (Transcript, 7 July 2010, p 55). Counsel for the Father also conceded to us that there was “absolutely no fault on the part of the appellant” (Transcript, 7 July 2010, p 55).
In discussion, we were also informed that the Mother was not in receipt of legal aid for the purposes of the appeal although she had made an application which was refused. However, the Father was successful with his application for legal aid for the appeal. This is an extraordinary situation and very unfair to the Mother.
By granting to the parties costs certificates pursuant to ss 6, 9 and 8 of the Federal Proceedings (Costs) Act, we accepted that for the purposes of s 117 of the Act the Mother had established a justifying circumstance in that the Father had been wholly unsuccessful in the appeal proceedings. However, we also accepted that both parties are financially impecunious and thus in those circumstances it would be appropriate that no order for costs be made. We were of the view that, as the appeal largely succeeded because of errors of law by the Federal Magistrate, it was appropriate to grant to each party a certificate under the Federal Proceedings (Costs) Act both in respect of the appeal and of the rehearing.
The granting of a certificate to the Father in respect of the appeal did not include any costs incurred by him in respect of the hearing that was vacated on 6 May 2010. However, the granting of a certificate to the Mother did include the costs of the hearing that was vacated and this was the reason why when granting a certificate to the Mother pursuant to s 9 of the Federal Proceedings (Costs) Act we included “the costs of the adjournment of the hearing of this appeal”. We did not include these words when granting to the Father a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act.
We considered making an order that in the event that the Attorney-General did not authorise a payment under the Federal Proceedings (Cost) Act to the Mother in respect of the costs incurred by the Mother in relation to the hearing of the appeal that was vacated on 6 May 2010 then the Father pay the costs incurred by the Mother in relation to the vacated hearing. However, given the financial circumstances of the Father we were of the view that no order should be made.
I certify that the preceding two-hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 18 August 2010.
Associate:
Date: 18 August 2010
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